As filed with the Securities and Exchange Commission
on February 28, 1996
Registration Statement No. 33-____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
RICHFOOD HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Virginia 54-1438602
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
8258 Richfood Road
Mechanicsville, Virginia 23111-2008
(Address of principal executive office, including zip code)
SUPER RITE FOODS
EMPLOYEE INVESTMENT OPPORTUNITY PLAN
(Full title of the plan)
____________________
Donald D. Bennett
Chairman and Chief Executive Officer
Richfood Holdings, Inc.
8258 Richfood Road
Mechanicsville, Virginia 23111-2008
804-746-6000
(Name, address and telephone number, including area code,
of agent for service)
With a copy to:
Gary E. Thompson
Hunton & Williams
Riverfront Plaza - East Tower
951 East Byrd Street
Richmond, Virginia 23219-4074
CALCULATION OF REGISTRATION FEE
Proposed
maximum Proposed
Title of aggregate maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share(1) price(1) fee
Common Stock, 75,000
no par value(2) shares $27.50 $2,062,500.00 $711.21
(1) Estimated solely for the purpose of computing the
registration fee. This amount was calculated based on the
average of the high and low sales prices of the Common Stock as
reported on the Nasdaq National Market on February 21, 1996.
(2) In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, as amended (the "Securities Act"), this
registration statement also covers an indeterminate amount of
interests in the employee benefit plan described herein.
EXPLANATORY NOTE: Effective October 15, 1995, pursuant to an
Agreement and Plan of Reorganization, dated as of June 26, 1995,
as amended, by and between Richfood Holdings, Inc. (the
"Company") and Super Rite Corporation ("Super Rite"), and the
related Plan of Merger, SR Acquisition, Inc., a wholly-owned
subsidiary of the Company, merged with and into Super Rite and
Super Rite became a wholly-owned subsidiary of the Company. As
part of the transaction, the Company assumed Super Rite's
obligations under the Super Rite Foods Employee Investment
Opportunity Plan (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Items 1 and 2. Plan Information and Registrant Information and
Employee Plan Annual Information.
Not required to be filed with the Securities and Exchange
Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Commission
are incorporated herein by reference:
(a) the Plan's Annual Report on Form 11-K for the
fiscal year ended December 31, 1994;
(b) the Company's Annual Report on Form 10-K for the
fiscal year ended April 29, 1995, as amended by Form 10-K/A1
filed with the Commission on September 6, 1995;
(c) the Company's Quarterly Reports on Form 10-Q for
the fiscal quarters ended July 22, 1995, October 14, 1995 and
January 6, 1996;
(d) the Company's Current Reports on Form 8-K filed
with the Commission on July 12, 1995, October 30, 1995 and
November 30, 1995; and
(e) the Company's Joint Proxy Statement/Prospectus
dated September 7, 1995, included in the Company's Registration
Statement on Form S-4 filed with the Commission (File No.
33-62413) on September 7, 1995.
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") after the date hereof and prior to the
filing of a post-effective amendment that indicates that all
securities offered have been sold or that deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to
be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes
of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document that
is incorporated by reference herein modifies or supersedes such
earlier statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Virginia Stock Corporation Act permits, and the Amended
and Restated Articles of Incorporation of the Company require,
indemnification of the Company's directors and officers in a
variety of circumstances, which may include liabilities under the
Securities Act. Under sections 13.1-697 and 13.1-702 of the
Virginia Stock Corporation Act, a Virginia corporation generally
is authorized to indemnify its directors and officers in civil or
criminal actions if they acted in good faith and, in the case of
criminal actions, had no reasonable cause to believe that the
conduct was unlawful. The Company's Amended and Restated
Articles of Incorporation require indemnification of directors
and officers with respect to any liability, expenses or other
amounts incurred by them by reason of having been a director or
officer, except in the case of willful misconduct or a knowing
violation of criminal law. The Company's Amended and Restated
Articles of Incorporation provide that, to the full extent that
the Virginia Stock Corporation Act permits elimination of the
liability of directors or officers, no director or officer of the
Company shall be liable to the Company or its stockholders for
any monetary damages. The Company may purchase insurance on
behalf of directors, officers, employees and agents that may
cover liabilities under the Securities Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Exhibit
4.1 Restated Super Rite Foods Employee Investment
Opportunity Plan.
4.2 Amendment #1 to the Super Rite Foods Employee
Investment Opportunity Plan.
4.3 Articles III and IV of the Company's Amended and
Restated Articles of Incorporation (incorporated by
reference to the Company's Quarterly Report on Form
10-Q for the twelve week period ended July 24, 1993).
4.4 Article V of the Company's Amended and Restated Bylaws
(incorporated by reference to the Company's Annual
Report on Form 10-K for the fiscal year ended April 29,
1995).
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Awareness Letter of Coopers & Lybrand L.L.P.
23.4 Consent of Coopers & Lybrand L.L.P.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or
sales are made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement; and
(iii)To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change in such
information in the registration statement;
provided, however, that (i) and (ii) do not apply if the
information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed or
furnished to the Commission by the registrant pursuant to Section
13 or 15(d) of the Exchange Act that are incorporated by
reference herein.
2. That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
provisions described under Item 6 above, or otherwise, the
registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
(d) The undersigned registrant hereby undertakes that the
registrant will submit or has submitted the Plan and any
amendment thereto to the Internal Revenue Service (the "IRS") in
a timely manner and has made or will make all changes required by
the IRS in order to qualify the Plan under Section 401 of the
Internal Revenue Code.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
Mechanicsville, Virginia, on this 28th day of February, 1996.
RICHFOOD HOLDINGS, INC.
(registrant)
By /s/ Donald D. Bennett
Donald D. Bennett
Chairman of the Board of Directors
and Chief Executive Officer
POWER OF ATTORNEY
Each of the directors and/or officers of the registrant
whose signature appears below hereby appoints Donald D. Bennett,
John E. Stokely and Daniel R. Schnur, or any of them, as his or
her attorney-in-fact to sign in his or her name and on his or her
behalf in any and all capacities stated below, and to file with
the Securities and Exchange Commission, any and all amendments,
including post-effective amendments to this registration
statement, making such changes in the registration statement as
appropriate, and generally to do all such things in their behalf
in their capacities as officers and directors to enable the
registrant to comply with the provisions of the Securities Act of
1933 and all requirements of the Securities and Exchange
Commission. Pursuant to the requirements of the Securities Act
of 1933, this registration statement has been signed by the
following persons in the capacities indicated on February 28,
1996.
Signature Title
By /s/ Donald D. Bennett Chairman of the Board of
Donald D. Bennett Directors and Chief Executive
Officer
(principal executive officer)
By /s/ John E. Stokely Director, President and
John E. Stokely Chief Operating Officer
By /s/ J. Stuart Newton Senior Vice President -
J. Stuart Newton Finance and Chief Financial
Officer
(principal financial officer)
By /s/ David W. Hoover Vice President - Finance
David W. Hoover (principal accounting officer)
By /s/ Roger L. Gregory Director
Roger L. Gregory
By /s/ Grace E. Harris Director
Grace E. Harris
By /s/ John C. Jamison Director
John C. Jamison
By /s/ Michael E. Julian, Jr. Director
Michael E. Julian, Jr.
By /s/ G. Gilmer Minor, III Director
G. Gilmer Minor, III
By Director
Claude B. Owen, Jr.
By Director
John F. Rotelle
By /s/ Albert F. Sloan Director
Albert F. Sloan
By /s/ George H. Thomazin Director
George H. Thomazin
By /s/ James E. Ukrop Director
James E. Ukrop
By Director
Edward Villanueva
The Plan. Pursuant to the requirements of the Securities
Act, the trustees of the Plan have caused this
registration statement to be signed on their behalf by the
undersigned, thereto duly authorized, in the City of
Harrisburg, State of Pennslyvania, on this 28th day of February,
1996.
SUPER RITE FOODS EMPLOYEE
INVESTMENT OPPORTUNITY PLAN
By: /s/ John J. Harrison
John J. Harrison
Trustee
EXHIBIT INDEX
Sequentially
Exhibit No. Description Numbered Page
4.1 Restated Super Rite Foods
Employee Investment Opportunity
Plan.
4.2 Amendment #1 to the Super Rite
Foods Employee Investment
Opportunity Plan.
4.3 Articles III and IV of the
Company's Amended and Restated
Articles of Incorporation
(incorporated by reference
to the Company's Quarterly Report
on Form 10-Q for the twelve week
period ended July 24, 1993).
4.4 Article V of the Company's Amended
and Restated Bylaws (incorporated by
reference to the Company's Annual
Report on Form 10-K for the fiscal year
ended April 29, 1995).
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Awareness Letter of Coopers & Lybrand L.L.P.
23.4 Consent of Coopers & Lybrand L.L.P.
Exhibit 4.1
SUPER RITE FOODS
EMPLOYEE INVESTMENT
OPPORTUNITY PLAN
<PAGE>
ARTICLE I
INTRODUCTION
SUPER RITE FOODS
EMPLOYEE INVESTMENT
OPPORTUNITY PLAN
AGREEMENT, executed this 28 day of December, 1994 by and between
SUPER RITE FOODS, INC., hereinafter referred to as the
"Employer", and William K. Schantzenbach and John J. Harrison,
hereinafter collectively referred to as the "Trustee" of the
Trust created by this Agreement.
WHEREAS, the Trustee is willing to act as a trustee for the
assets of said Plan; and
WHEREAS, effective April 1, 1985, Super Rite Foods, Inc. (the
"Employer") established the Super Rite Foods Employee Investment
Opportunity Plan (the "Plan"), for the benefit of its Employees
and their Beneficiaries; and
WHEREAS, such Plan was subsequently amended, and
WHEREAS, under the terms of the Plan, the Employer has the
authority to amend the Plan.
NOW THEREFORE, effective April 1, 1989, the Employer adopts the
attached restated 401(k) Profit Sharing Plan for its Employees.
The terms of this restated Plan will apply to active Employees on
and after April 1, 1989, and will not apply to Employees who
retired under the Plan or terminated employment prior to April 1,
1989. The Employer agrees to make the contributions required by
the Plan for as long as the Plan remains in effect.
IN WITNESS WHEREOF, this Plan has been executed on the 28 day of
December, 1994.
SUPER RITE FOODS, INC.
/s/ Pamela A. Barrish /s/ William Schantzenbach
WITNESS TITLE: Vice President -
Finance and Chief
Financial Officer
/s/ Pamela A. Barrish /s/William Schantzenbach
WITNESS TRUSTEE
/s/ Pamela A. Barrish /s/ John J. Harrison
WITNESS TRUSTEE
ARTICLE II
DEFINITIONS
Whenever used in this Plan, the following terms will have the
meanings hereinafter set forth:
2.1 "Account" means the account established by the Funding
Agent for each Participant with respect to his total
interest in the Plan resulting from:
(i) The Participant's Salary-Reduction Contributions;
(ii) The Employer's Discretionary Contributions;
(iii) The Employer's Matching Contributions;
(iv) The Participant's Voluntary Contributions;
(v) The Employer's PAYSOP Contributions;
(vi) The Participant's Rollover Contributions;
(vii) Forfeitures;
(viii) The Employer's Qualified Matching Contributions, if
any;
(ix) The Employer's Qualified Non-Elective
Contributions, if any.
Such contributions are described in detail in Article V of
this Plan.
A Participant's Account may be subject to charges as
described in the Contract or Contracts between the Employer
and the Funding Agent, and any expenses involved in
administering the Plan. Any charges which would otherwise
be made against a Participant's Account in accordance with
the Contracts and/or the Plan may instead be paid by the
Employer.
2.2 "Act" means the Employee Retirement Income Security Act of
1974, as it may be amended from time to time.
2.3 "Administrator" means the person or committee designated to
administer the Plan.
2.4 "Affiliate" means the Employer and any corporation which is
or was a member of a "controlled group of corporations" (as
defined in Code section 414(b)) which includes the
Employer, any trade or business whether or not incorporated
which is under "common control" (as that term is defined
under Code section 414(c)) with the Employer, any
organization (whether or not incorporated) which is a
member of an "affiliated service group" (as defined in Code
section 414(m)) which includes the Employer, and any other
entity required to be aggregated with the Employer under
Code section 414(o) and the Regulations issued thereunder.
2.5 "Annuity Starting Date" means the first day of the first
period for which an amount is payable as an annuity, or, in
the case of a benefit not payable in the form of annuity,
the first day on which all events have occurred which
entitles the Participant to such benefit.
2.6 An "Approved Absence," for purposes of this Plan, will be
considered service with the Employer except that no
contributions will be made on behalf of the Employee while
so absent unless he receives Compensation from the Employer
during such absence. An Approved Absence will be granted
for such purposes as education, vacation, illness,
maternity or paternity reasons or military service in the
Armed Forces of the United States. In addition, an
Approved Absence may be granted by the Employer for other
reasons under rules uniformly applicable to all Employees
similarly situated. An Approved Absence will not, in the
case of an Employee in military service of the Armed Forces
of the United States, exceed that period during which his
reemployment rights are protected by law. If an Employee
does not return to employment with the Employer immediately
following an Approved Absence, he will be considered
terminated on the day following such absence.
2.7 "Beneficiary" means the Participant's Eligible Spouse. If
the Participant makes a Qualified Election, then the
Beneficiary means the person or entity to whom a deceased
Participant's Account is payable as designated by the
Participant.
2.8 "Code" means the Internal Revenue Code of 1986, as amended
or replaced from time to time.
2.9 "Compensation" means, with respect to any Participant,
total compensation paid to the Participant for the Plan
Year to the extent such amounts are includible in the
Participant's gross income for federal income tax purposes
and any elective deferrals with respect to employment with
the Employer: (i) under a qualified cash or deferred
arrangement described in Code section 401(k); (ii) to a
plan qualified under Code section 125; (iii) to a tax-
sheltered annuity described in Code section 403(b); or (iv)
to a plan qualified under Code section 402(b).
Compensation shall not include: Any amounts paid by reason
of services performed (i) after the date a Participant
ceases to be a Participant in the Plan, (ii) prior to the
date an Employee becomes a Participant under the Plan;
(iii) Any nontaxable fringe benefits provided by the
Employer; and (iv) Any amounts contributed by the Employer
other than elective deferrals, referred to in this Plan as
Salary-Reduction Contributions, for or on account of its
Employees, under this Plan or under any other employee
benefit plan qualified under the provisions of Code section
401(a).
In addition, each Participant may elect to defer and have
allocated for a Plan Year all or a portion of any cash
bonus attributable to services performed by the Participant
for the Employer during such Plan Year and which would have
been received by the Participant on or before two and one-
half months following the end of the Plan Year but for the
deferral. A deferral election may not be made with respect
to cash bonuses which are currently available on or before
the date the Participant executed such election.
Notwithstanding the foregoing, cash bonuses attributable to
services performed by the Participant during a Plan Year
but which are to be paid to the Participant later than two
and one-half months after the close of such Plan Year will
be subjected to whatever deferral election is in effect at
the time such cash bonus would have otherwise been
received.
The amount by which Compensation and/or cash bonuses are
reduced will be that Participant's Deferred Compensation
and be treated as a Salary Reduction Contribution and
allocated to that Participant's Account.
For Plan Years after December 31, 1988, Compensation in
excess of $200,000 will be disregarded. Such amount will
be adjusted at the same time and in such manner as
permitted under Code section 415(d). In applying this
limitation, the family group of a Highly Compensated
Participant who is subject to the Family Member aggregation
rules of Code section 414(q)(6) because such Participant is
either a "five percent owner" of the Employer or one of ten
(10) Highly Compensated Employees, will be treated as a
single Participant, except that for this purpose Family
Members will include only the affected Participant's spouse
and any lineal descendants who have not attained age
nineteen (19) before the close of the year.
If, as a result of the application of such rules the
adjusted $200,000 limitation is exceeded, then the
limitation will be prorated among the affected Family
Members in proportion to each such Family Member's
Compensation prior to the application of this limitation.
2.10 "Contract" means a group annuity contract or contracts
issued to the Employer by the Funding Agent.
2.11 "Disability Retirement Date" means, with respect to any
Participant, the first day of the month coinciding with or
next following such Participant's retirement irrespective
of his age. A Participant will be considered disabled for
purposes of the Plan if, on account of total and permanent
physical or mental disability, he no longer is capable of
performing the duties of his regular occupation as
certified by a qualified physician selected by the Plan
Administrator. The determination will be applied uniformly
to all Participants.
2.12 "Distribution Date" means, subject to the terms of the
Plan, the first day of the month coinciding with or next
following a Participant's Normal, Disability or Postponed
Retirement Date, but not beyond his Required Beginning Date
as in this Plan.
2.13 "Early Retirement Date." This Plan does not provide for a
retirement date prior to Normal Retirement Date.
2.14 "Effective Date" means April l, 1985.
2.15 "Eligible Employee" means an Employee of the Employer who
satisfies the eligibility requirements under the Plan.
2.16 "Eligible Spouse" means, with respect to any Participant,
the spouse who is married to the Participant on his
Distribution Date or on the date of his death, whichever
comes first.
2.17 "Employee" means any person who is employed by the
Employer, but excludes any person whose employment is
governed by the terms of a collective bargaining agreement
between Employee representatives (within the meaning of
Code Section 7701(a)(46)) and the Employer under which
retirement benefits were the subject of good faith
bargaining between the parties, unless such agreement
expressly provides for such coverage in this Plan.
Employee will include leased employees within the meaning
of Code sections 414(n)(2) and 414(O)(2).
2.18 "Employer" means Super Rite Foods, Inc. and any predecessor
and/or successor thereto.
2.19 "Family Member" will mean an Employee who is, on any one
day of the year, a spouse or lineal descendent who has not
attained age nineteen (19) before the last day of the year,
or an individual who during the year was (i) an active or
former Employee and a five percent (5%) owner within the
meaning of Code section 414(q)(3) and the regulations
thereunder, or (ii) one of the ten (10) most highly-paid
Highly Compensated Employees; provided, however, that any
compensation paid to such spouse or lineal descendant will
be treated as if it were paid to the individual described
in (i) or (ii) above.
2.20 "Fiscal Year" means the fiscal period or fiscal year used
by the Employer for Federal income tax purposes.
2.21 "Funding Agent" means any legal reserve life insurance
company or trustee selected by the Employer to receive the
Plan contributions and to pay the benefits under and in
accordance with the terms of the Plan.
2.22 An "Hour of Service" means:
(1) each hour for which the Employee is directly or
indirectly paid, or entitled to payment, by the
Employer or an Affiliate for the performance of
duties (these hours will be credited to him for the
period or periods in which the duties are
performed), and
(2) each hour for which an Employee is on an Approved
Absence and for which he is directly or indirectly
paid by the Employer or an Affiliate (However, no
more than 501 hours will be credited for each
single continuous period of an absence. These
hours will be credited to him for the period or
periods during which he is so absent.), and
(3) each hour for which back pay as an Employee,
irrespective of mitigation of damages, has been
either awarded or agreed to by the Employer or
Affiliate (these hours will be credited to him for
the period or periods in which the award, agreement
or payment was made).
A given hour will be credited to an Employee only under one
of the above items. Hours of Service will be computed in
accordance with the Department of Labor Regulations Section
2530.200b-2(b) and (c).
In lieu of determining Hours of Service on the basis of
actual hours for which an Employee is paid or entitled to
payment, the Plan Administrator may, in accordance with a
uniform nondiscriminatory policy, elect to credit Hours of
Service using one of the following methods:
(a) Count actual Hours of Service for which an Employee
is paid or entitled to payment.
(b) Count 190 Hours of Service for each month in which
an Employee is paid or entitled to Payment for at
least one Hour of Service.
(c) Count 95 Hours of Service for each semi-monthly
period in which an Employee is paid or entitled to
payment for at least one Hour of Service.
(d) Count 45 Hours of Service for each week in which an
Employee is paid or entitled to payment for at
least one Hour of Service.
(e) Count 10 Hours of Service for each day in which an
Employee is paid or entitled to payment for at
least one Hour of Service.
2.23 "Investment Manager" means an entity that (a) has the power
to manage, acquire, or dispose of Plan assets, and
(b) acknowledges fiduciary responsibility to the Plan in
writing. Such entity must be a person, firm, or
corporation registered as an investment adviser under the
Investment Advisers Act of 1940, a bank, or an insurance
company.
2.24 "Leased Employee" means any person (other than Employee of
the recipient) who pursuant to an agreement between the
recipient and any other person ("leasing organization") has
performed services for the recipient (or for the recipient
and related persons determined in accordance with Code
section 414(n)(6)) on a substantially full time basis for a
period of at least one year, and such services are of a
type historically performed by employees in the business
field of the recipient employer. Contributions or benefits
provided a leased employee by the leasing organization
which are attributable to services performed for the
recipient employer will be treated as provided by the
recipient employer.
A Leased Employee will not be considered an Employee of the
recipient if: (i) such employee is covered by a money
purchase pension plan providing: (1) a nonintegrated
employer contribution rate of at least 10 percent of
compensation, as defined in Code section 415(c)(3), but
including amounts contributed pursuant to a salary
reduction agreement which are excludible from the
employee's gross income under Code section 125, 402(a)(8),
402(h) or 403(b), (2) immediate participation, and (3) full
and immediate vesting; and (ii) Leased Employees do not
constitute more than 20 percent of the recipient's
nonhighly compensated workforce.
2.25 "Named Fiduciary" means the person or committee designated
to manage and control the assets of the Plan.
2.26 "Normal Retirement Date" means the first day of the month
coinciding with or immediately following the Participant's
attainment of age 65.
2.27 A "One-Year Break in Service" means a twelve consecutive
month period beginning on the date an Employee first
completes an Hour of Service or anniversary thereof in
which the Employee does not complete more than 500 Hours of
Service.
Solely for purposes of determining whether a One-Year Break
in Service has occurred in a computation period, an
Employee who is granted an Approved Absence for maternity
or paternity reasons will receive credit for the Hours of
Service which would otherwise have been credited to such
Employee. However, no more than 501 Hours of Service will
be credited under this paragraph for a single computation
period. For purposes of this paragraph, an absence from
work for maternity or paternity reasons means an absence
(1) by reason of the Employee's pregnancy, (2) by reasons
of the birth of a child of the Employee, (3) by reason of
the placement of a child with the Employee, or (4) for
purposes of caring for such child for a period beginning
immediately following such birth or placement. The Hours
of Service credited under this paragraph will be credited
in the computation period in which the absence begins if
the crediting is necessary to prevent a One-Year Break in
Service in that period, or in all other cases, in the
following computation period.
2.28 "Participant" means any Eligible Employee who on or after
the Effective Date meets the eligibility requirements set
forth in this Plan.
2.29 "Plan" means the Super Rite Foods Employee Investment
Opportunity Plan. The Plan is intended to be a profit
sharing plan within the meaning of Regulation 1.401(k)-
1(a)(1).
2.30 "Plan Restatement Date" means July 1, 1991. The Plan is
intended to be a profit sharing plan within the meaning of
Regulation 1.401(k)-1(a)(1).
2.31 "Plan Year" means the period from January 1 through
December 31, and each twelve-month period commencing on
January 1.
2.32 "Postponed Retirement Date" means the date a Participant
who continues in employment beyond his Normal Retirement
Date actually retires but not beyond his Required Beginning
Date.
2.33 "Qualified Matching Contributions" means the Employer's
matching contributions made pursuant to this Plan which are
used to satisfy either the Actual Deferral Percentage Test
or the Actual Contribution Percentage Test.
Such contributions are non-forfeitable when made, and may
not be distributed to the Participant earlier than
separation from service, death, disability, Financial
Hardship, or the attainment of age 59 1/2.
For Plan Years beginning after December 31, 1988, such
contributions, and any interest income or earnings thereon,
will no longer be eligible for distribution as a result of
a proven Financial Hardship.
2.34 "Qualified Non-Elective Contributions" means the Employer's
contributions made pursuant to this Plan which are used to
either satisfy the Actual Deferral Percentage Test or the
Actual Contribution Percentage Test.
Such contributions are non-forfeitable when made and may
not be distributed to the Participant earlier than
separation from service, death, disability, Financial
Hardship, or the attainment of age 59-1/2.
2.35 "Reemployment Commencement Date" means the date an
individual is first credited with an Hour of Service for
performing duties for the Employer upon reemployment.
For Plan Years beginning after December 31, 1988, such
contributions, and any interest income or earnings thereon,
will no longer be eligible for distribution as a result of
a proven Financial Hardship.
2.36 "Regulations" means the Income Tax Regulations as
promulgated by the Secretary of the Treasury or his
delegate, and as amended from time to time.
2.37 "Taxable Year" means the annual period used by a
Participant for Federal income tax purposes.
2.38 "Top Heavy" related definitions are set forth in Article XI
(Rules for Top-Heavy Plans).
2.39 "Trustee" means the bank, organization, individual or
individuals, designated by the Employer to administer the
Trust under the Plan.
2.40 "Trust Fund" means the assets of the Plan and Trust as they
shall exist from time to time.
2.41 "Year of Service" means a 12-consecutive-month period
beginning on the date an Employee first completes an Hour
of Service or an anniversary thereof during which he
completes at least 1,000 Hours of Service.
For purposes of eligibility for participation, the initial
computation period will begin with the date on which the
Employee first performs an Hour of Service. The
participation computation period beginning after a 1-Year
Break in Service will be measured from the date on which an
Employee again performs an Hour of Service. After the
initial computation period, the participation computation
period will shift to the current Plan Year which includes
the anniversary of the date on which the Employee first
performed an Hour of Service. Except, however, for the
initial Plan Year, the 1,000 hour service requirement set
forth above will be disregarded for the Employee's
eligibility computation period.
Years of Service with any corporation, trade or business
which is a member of a controlled group of corporations or
under common control (as defined by Section 1563(a) and
Section 414(c) of the Code, or is a member of an affiliated
service group (as defined by Section 414(m) of the Code)
will be recognized.
ADMINISTRATION
3.1 Named Fiduciary
The Employer will be the Named Fiduciary of the Plan and
will have the authority to control and manage the operation
and administration of the Plan. However, the Employer will
not have any authority over the management, control or
investment of any assets that are placed in the control of
the Funding Agent.
The Named Fiduciary will discharge his duties under the
Plan solely in the interests of the Participants and their
Beneficiaries and for the exclusive purpose of providing
benefits to Participants and their Beneficiaries and
defraying reasonable expenses of administering the Plan.
The Named Fiduciary will act with the care, skill, prudence
and diligence under the circumstances that a prudent man
acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like
character and with like aims.
The Named Fiduciary will have all the powers necessary or
appropriate to accomplish his duties under the plan.
Without limiting the generality of the foregoing, the Named
Fiduciary will have the following powers and duties:
(a) to allocate and delegate by written instrument, its
fiduciary responsibilities to designated persons in
accordance with section 405 of the Act, provided
however, that any such allocation or delegation
will be terminable on such notice as the Named
Fiduciary deems reasonable and prudent under the
circumstances and the Named Fiduciary will not be
liable for any act or omission of a person so
designated;
(b) to appoint or delegate such authority to the
Trustee to appoint one or more Investment Managers
(as defined in section 3(38) of the Act) to manage
(including the power to acquire and dispose of) any
assets of the Plan;
(c) to determine the size and type of any Contract to
be issued by the Funding Agent and to designate the
Funding Agent from which such Contract will be
obtained;
(d) to direct the Trustee to enter into one or more
Contracts with the Funding Agent under which the
Funding Agent establishes and makes available
separate investment funds to which Participants may
direct the investment of their Accounts. Any such
Contract(s) may provide for the contributions
thereunder to be held in the Funding Agent's
general account or one or more of its commingled
separate accounts; and
(e) to review periodically the performance of the
Funding Agent for the purpose of determining
whether it is prudent to retain the Funding Agent.
(f) to appoint or remove a Trustee or Trustees from
time to time as it deems necessary for the proper
administration of the Plan to assure that the Plan
is being operated for the exclusive benefit of the
Participants end their Beneficiaries.
The Named Fiduciary may serve in more than one capacity
with respect to the Plan (including service both as a
fiduciary and administrator).
3.2 Administrator
The Employer will be the Administrator of the Plan.
However, the Employer may appoint one or more persons to
carry out the duties it would otherwise perform as
Administrator. Any person, including an Employee of the
Employer, may serve as Administrator. Any person or
persons so appointed will indicate acceptance of such
appointment, in writing, to the Employer. An Administrator
may resign by delivery of written notice to the Employer or
may be removed by the Employer by delivery of written
notice to such Administrator. Such written notice will
specify the date of resignation or removal.
The Administrator will ensure that the Plan is operated in
accordance with the terms of the Plan, the Code and the
Act.
The Administrator will have all the powers necessary or
appropriate to accomplish his duties under the Plan.
Without limiting the generality of the foregoing, the Plan
Administrator will have the following powers and duties:
(a) to make and enforce such rules and regulations as
it deems necessary or proper for the efficient
administration of the Plan or required to comply
with applicable law;
(b) to interpret the Plan with the fullest discretion
permitted by law, its good faith interpretation
thereof to be final, conclusive and binding on any
Employee, former Employee, Participant, former
Participant and Beneficiary;
(c) to decide on questions concerning the Plan and the
eligibility of any person to participate in the
Plan;
(d) to compute the amounts to be distributed to any
Participant, former Participant or Beneficiary in
accordance with the provisions of the Plan, and to
determine the person or persons to whom such
amounts will be distributed;
(e) to authorize the payment of distributions;
(f) to keep such records end submit such filings,
elections, applications, returns or other documents
or forms as may be required under the Code and
applicable Regulations, or under other Federal,
State, or local law and regulations; and
(g) to appoint such agents, counsel, accountants and
consultants as may be required to assist in
administering the Plan.
The Administrator may delegate to one or more persons the
authority and responsibility with respect to the day-to-day
operation of the plan.
3.3 Funding Agent
The Employer will have the power to appoint and remove the
Funding Agent. The Funding Agent will have the authority
and discretion to manage, control and invest (to the extent
not directed by the Participants) the assets of the Plan
placed in its control. The determination of any transfers
or payments to be made by the Funding Agent will be made in
accordance with the terms of the Plan and any Contract or
Contracts between the Trustee and the Funding Agent.
3.4 Funding Policy
The funding policy of the Plan is to make contributions in
accordance with the Plan.
3.5 Claims and Review Procedures
(a) Claims Procedures: If any person believes he is
being denied any rights or benefits under the Plan,
such person may file a claim in writing with the
Administrator. If any such claim is wholly or
partially denied, the Administrator will notify
such person of its decision in writing. Such
notification will contain: (1) specific reasons
for the denial, (2) specific reference to pertinent
Plan provisions, (3) a description of any
additional material or information necessary for
such person to perfect such claim and an
explanation of why such material or information is
necessary, and (4) information as to the steps to
be taken if the person wishes to submit a request
for review.
Such notification will be given within 90 days
after the claim is received by the Administrator
(or within 180 days, if special circumstances
require an extension of time for processing the
claim, and if written notice of such extension and
circumstances is given to such person within the
initial 90 day period). If such notification is
not given within such period, the claim will be
considered denied as of the last day of such period
and such person may request a review of his claim.
(b) Review Procedures: Within 60 days after the date
on which a person receives written notice of a
denial (or, if applicable, within 60 days after the
date on which such denial is considered to have
occurred) such person (or his or her duly
authorized representative) may: (1) file a written
request with the Administrator for a review of the
denied claim and of pertinent documents, and (2)
submit written issues and comments to the
Administrator.
The Administrator will notify such person of its decision
in writing. Such notification will be written in a manner
calculated to be understood by such person and will contain
specific reasons for the decision as well as specific
references to pertinent Plan provisions. The decision on
review will be made within 60 days after the request for
review is received by the Administrator (or within 120
days, if special circumstances require an extension of time
for processing the request, such as an election by the
Administrator to hold a hearing, and if written notice of
such extension and circumstances is given to such person
within the initial 60 day period). If the decision on
review is not made within such period, the claim will be
considered denied.
The decision of the Administrator on review will be final
and binding on all parties to the extent it is made in good
faith and is reasonable and not arbitrary or capricious.
ARTICLE IV
PARTICIPATION AND VESTING
4.1 Eligibility for Participation
Any Employee who was a Participant in the Plan prior to the
date of this restatement will remain a Participant under
this restated Plan provided such Employee has completed at
least one Hour of Service after the Restatement Date. Any
Employee who terminated his employment with the Employer or
who retired prior to the Restatement Date will be subject
to the terms of the Plan prior to this amendment and
restatement.
Each person who is an Eligible Employee on the Restatement
Date of the Plan may become a Participant on such date.
All other persons may become Participants on the Entry Date
which is the first day of the next following April or
October following the later of his completion of one (1)
Year of Service and his attainment of age 21.
An Eligible Employee will become a Participant hereunder by
making application to the Employer for participation in the
Plan and agreeing to the terms hereof.
In the event an Eligible Employee who otherwise qualifies
to become a Participant fails to file such application, the
Employer will file such application on behalf of such
Eligible Employee on a nondiscriminatory basis.
Upon acceptance of any benefits under this Plan, such
Eligible employee will automatically be bound by the terms
and conditions of the Plan and all amendments thereto.
If any Former Participant is reemployed by the Employer
before a 1-Year Break in Service occurs, he will continue
to participate in the Plan in the same manner as if such
termination had not occurred. Salary-Reduction
Contributions may recommence on the Reemployment
Commencement Date or on the Entry Date next following the
Participant's Reemployment Commencement Date, in accordance
with uniform rules and procedures established by the Plan
Administrator.
A former Participant will become a Participant immediately
upon his return to the employ of the Employer, in
accordance with uniform rules and procedures established by
the Plan Administrator, if such former Participant had a
nonforfeitable right to all or a portion of his Employer
Account at the time of his termination.
In the event a Participant becomes ineligible to
participate because he is no longer a member of an eligible
class of Employees, but has not incurred a One-Year Break
in Service, such Employee will participate immediately upon
his return to an eligible class of Employees in accordance
with uniform rules and procedures established by the Plan
Administrator. If such Participant incurs a One-Year Break
In Service, his eligibility to participate shall be
determined pursuant to Section 4.3.
In the event an Employee who is not a member of the
eligible class of Employees becomes a member of the
eligible class, such employee will participate immediately,
in accordance with uniform rules and procedures established
by the Plan Administrator, if such Employee has satisfied
the minimum age and service requirements and would have
previously become a Participant had he been in the eligible
class.
If any reemployed Employee was not a Participant at the
time of his prior termination he will become a Participant
at such time as he has satisfied the minimum age and
service requirements, taking into account his Credited
Service at the time of his prior termination, as well as
his Credited Service rendered after his reemployment.
4.2 Vesting
Effective July 1, 1991, the vested portion of the
Participant's Account attributable to Employer Matching
Contributions, will be a percentage of such contributions
on the basis of the Participant's number of Years of
Service according to the following schedule:
Years of Service Vesting Percentage
Less than 3 years 0%
3 years or more 100%
If the vesting schedule is amended or if it is deemed to be
amended by an automatic change to or from the Top-Heavy
Vesting Schedule, each Participant with at least three (3)
Years of Service with the Employer may elect, within a
reasonable period after the adoption of the amendment or
change, to have the nonforfeitable percentage of his
Account attributable to Employer Contributions computed
under the Plan without regard to such amendment or change.
For any Participant who has not completed at last one (1)
Hour of Service in any Plan Year beginning after December
31, 1988, the preceding sentence will be applied by
substituting three (3) Years of Service with five (5) Years
of Service.
In addition, a Participant will have a 100% vested right to
his Account as of his Normal Retirement Date, Disability
Retirement Date or as of the date of the Participant's
death while in the employ of the Employer.
A Participant will always be 100% vested in the portion of
his Account attributable to his (1) Salary-Reduction
Contributions, (2) Voluntary Contributions, (3) Rollover
Contributions, (4) Employer Discretionary Contributions and
(5) Employer PAYSOP contributions.
4.3 Effect of One-Year Break in Service
(a) Effect on Participant's Account
If a Participant incurs a One-Year Break in
Service, the part of his Account for which he is
not vested, if any, will be forfeited when he has
incurred five consecutive One-Year Breaks in
Service.
However, if a Participant who terminates employment
before retirement receives a distribution pursuant
to the terms of this Plan, and the distribution is
less than the full value of his Account, the
remaining part of his Account will be forfeited at
the time of the distribution. Any such forfeited
amount will be used as specified in this Plan.
If a Participant who received a distribution
pursuant to the terms of this Plan resumes
participation under the Plan before he has incurred
five or more consecutive One-Year Breaks in
Service, the part of his Account attributable to
the Employer's Contributions which were forfeited
will be restored only upon repayment of the amount
of the distribution. However, repayment must be
made not later than the earlier of (i) the date
five years after resumption of employment and (ii)
the end of the period within which five One-Year
Breaks are incurred following the date of
distribution.
(b) Effect on Vesting Rights
In the case of a Participant who is less than 100%
vested and who has five or more consecutive One-
Year Breaks in Service, all service after such
Breaks in Service will be disregarded for the
purpose of vesting in the part of the Participant's
Account derived from the Employer's Contributions
that accrued before such Breaks. Such
Participant's pre-Break service will count in
vesting the post-Break part of his Account derived
from the Employer's Contributions only if:
(1) such Participant is vested for a portion of
his Account attributable to the Employer's
Contributions and such vested portion was not
forfeited, and
(2) upon returning to service, the number of
consecutive One-Year Breaks is less than the
number of his Years of Service.
In the case of a Participant who is less than 100%
vested and who has less than five consecutive One-
Year Breaks in Service, his pre-Break service will
be aggregated with his post-Break service for
purposes of vesting in both the pre-Break and post-
Break portion of his Account attributable to the
Employer's Contributions.
(c) Effect on Participation
An Employee who did not have a nonforfeitable right
to any part of the amount of his Account derived
from the Employer's Contributions at the time he
incurred a One-Year Break in Service, will be
considered a new Employee for eligibility purposes
if he has incurred five consecutive One-Year Breaks
in Service. If such Employee's Years of Service
before the date he incurred a One-Year Break in
Service may not be disregarded pursuant to the
preceding sentence, such Employee's Years of
Service will count in determining his eligibility.
ARTICLE V
CONTRIBUTIONS
5.1 Contributions may be made by or on behalf of a Participant
as follows:
(a) Salary-Reduction Contributions
Each Participant may elect to defer, through
periodic payroll deductions, (a) prior to July 1,
1991, from 1% to 15% and (b) on and after July 1,
1991, from 3% up to 15% of his Compensation
(subject to the limitations of this Article V) for
the Plan Year and to have this amount contributed
under the Plan. Such deferred amounts are
hereinafter referred to as "Salary-Reduction
Contributions." Such Contributions will be made
pursuant to a Salary-Reduction Agreement.
The Employer may, at its discretion, restrict the
amount of Salary-Reduction Contributions made by a
Highly-Compensated Participant in any Plan Year.
A Participant's Salary-Reduction Contributions will
not exceed the dollar limit set forth in Code
section 402(g) for the Taxable Year of the
Participant. The dollar limitation will be
adjusted annually as provided in Code section
415(d) pursuant to Regulations. The adjusted
limitation will be effective as of January 1st of
each calendar year.
In the event that such dollar limitation is
exceeded, the excess ("Excess Salary-Reduction
Contributions") will be adjusted, as provided in
the following paragraph, and will be returned to
the Participant before the April 15 following the
close of the Participant's Taxable Year. Excess
Salary-Reduction Contributions will not include any
amounts properly distributed as excess Annual
Additions.
Excess Salary-Reduction Contributions will be
adjusted for any income or loss up to the end of
the Taxable Year. The income or loss allocable to
the Participant's Excess Salary-Reduction
Contributions is equal to the allocable gain or
loss for the Taxable Year. The Employer, with the
consent of the Funding Agent, may also include the
allocable gain or loss for the period between the
end of the Taxable Year and the date of
distribution ("gap period").
The Employer may, with the consent of the Funding
Agent, apply any reasonable method for computing
the income or losses allocable to Excess Salary-
Reduction Contributions and, if applicable, the
"gap period." Such method will be applied to all
affected Participants in a uniform and
nondiscriminatory basis and such method will be
used consistently for all other corrective
distributions required to be made under the Plan
for that Plan Year.
In the event that a Participant is also a
participant in (1) another qualified cash or
deferred arrangement, as defined in Code section
401(k), (2) a simplified employee pension plan or
deferred arrangement described in Code section
402(b)(1)(B), (3) an eligible deferred compensation
plan under Code section 457, (4) a plan described
under Code section 501(c)(18), or (5) a salary
reduction arrangement under Code section 403(b) and
the elective deferrals, as defined in Code section
402(g)(3), made under all such other arrangements
and this Plan cumulatively exceed the dollar limit
set forth in Code section 402(g), as adjusted, such
Participant may notify the Administrator of such
excess, in writing, not later than the March 1
following the close of his Taxable Year, and
request that his Salary-Reduction Contributions
under this Plan be reduced by an amount specified
by the Participant. Such amount will be returned
in the same manner as the Excess Salary-Reduction
Contributions under this Plan are returned, as
described in the preceding paragraph.
Notwithstanding the foregoing, a Participant's
Excess Salary-Reduction Contributions will be
reduced, but not below zero, by any distribution of
Excess Contributions for the Plan Year beginning
with or within the Taxable Year of the Participant.
(b) Matching Contributions
Effective on and after July 1, 1991, the Employer
will make a contribution to the Plan for each
Participant who has elected to have Salary-
Reduction Contributions made on his behalf during a
Plan year (subject to the limitations of this
Article V). Such contributions will be equal to
35% of the Participant's Compensation for such Plan
Year and will be referred to as the "Employer's
Matching Contributions."
(c) Discretionary Contributions
Effective on and after January 1, 1987, the
Employer may make a contribution (subject to the
limitations of this Article V) from Net Profits or
from accumulated Net Profits to the Plan at the end
of each Plan Year in an amount, which in the
opinion of the Employer, is appropriate for such
Plan Year. Such contributions will be referred to
as the "Employer's Discretionary Contributions."
(d) Voluntary Contributions
A Participant may elect to make after-tax
contributions in integral percentages of up to 10%
of his Compensation for any Plan Year. Such
contributions will be referred to as the
Participant's "Voluntary Contributions." On and
after July 1, 1991, Voluntary Contributions will no
longer be permitted.
(e) PAYSOP Contributions Contributions
Effective on April 1, 1985, A Payroll Credit
Employee Stock Ownership Plan ("PAYSOP") was
established in Article XII of the previous plan to
promote Employees' interest in the business
endeavors of the Employer.
Effective for the Plan Year beginning January 1,
1987, Article XII, of the previous Plan under which
contributions were made, is no longer operative.
Contributions made on behalf of Participants
pursuant to Article XII of the previous Plan will
be referred to as the "Employer's PAYSOP
Contributions."
Wherever the term "Employer Contributions" appears in the
Plan, it will be deemed to include the employer's Matching
Contributions and Discretionary Contributions, unless
otherwise indicated.
In no event may the Employer's Contributions, inclusive of
Salary-Reduction Contributions made on the Participants'
behalf for any Plan Year to the Plan exceed the maximum
amount of contributions permitted by law as a tax-
deductible expense for such Plan Year under Code section
404, or any other applicable provisions of the Code.
5.2 Allocation of Employer Contributions and Forfeitures
Participants will be eligible to receive the allocation of
the Employer's Matching and Discretionary Contributions
only if such Participants have completed a Year of Service
during such Plan Year and are actively employed on the last
day of such Plan Year.
Notwithstanding the foregoing, Participants who are not
actively employed on the last day of the Plan Year due to
Disability, Normal, or Postponed Retirement or death will
be eligible to receive the Employer's Matching and
Discretionary Contributions regardless of the number of
Hours of Service completed during such Plan Year.
Any Forfeitures of Employer Contributions which arise will
be used first to pay all or a part of the expenses of the
Plan, and then if any amount remains, to reduce Employer
Contributions to the Plan for such Plan Year in which the
Forfeiture occurred.
Notwithstanding anything to the contrary, for Plan Years
beginning after December 31, 1989, if this is a Plan that
would otherwise fail to meet the requirements of Code
sections 401(a)(26), 410(b)(1) or 410(b)(2)(A)(i) and the
Regulations thereunder because Employer Contributions have
not been allocated to a sufficient number or percentage of
Participants for a Plan Year, then the following rules will
apply:
(1) The group of Participants eligible to share
in the Employer's Contribution for the Plan
Year will be expanded to include the minimum
number of Participants who would not
otherwise be eligible as are necessary to
satisfy the applicable test specified above.
The specific Participants who will become
eligible under the terms of this paragraph
will be those who are actively employed on
the last day of the Plan Year and, when
compared to similarly situated Participants,
have completed the greatest number of Hours
of Service in the Plan Year.
(2) If after application of paragraph (1) above,
the applicable test is still not satisfied,
then the group of Participants eligible to
share in the Employer's Contributions for the
Plan Year will be further expanded to include
the minimum number of Participants who are
not actively employed on the last day of the
Plan Year as are necessary to satisfy the
applicable test. The specific Participants
who will become eligible to share will be
those Participants, when compared to
similarly situated Participants, who have
completed the greatest number of Hours of
Service in the Plan Year before terminating
employment.
(3) Nothing in this section will permit the
reduction of a Participant's accrued benefit.
Therefore any amounts that have previously
been allocated to Participants may not be
reallocated to satisfy these requirements.
In such event, the Employer will make an
additional contribution equal to the amount
such affected Participants would have
received had they been included in the
allocations, even if it exceeds the amount
which would be deductible under Code section
404. Any adjustment to the allocations
pursuant to this paragraph will be considered
a retroactive amendment adopted by the last
day of the Plan Year.
5.3 Rollovers
Effective January 1, 1992, with the consent of the
Administrator, amounts may be transferred from other
qualified plans, provided that the plan from which such
funds are transferred permits the transfer to be made and,
in the opinion of legal counsel for the Employer, the
transfer will not jeopardize the tax exempt status of the
Plan or create adverse tax consequences for the Employer.
At the direction of the Administrator, rollovers will be
credited to an Employee's or a Participant's Account held
by the Funding Agent and will be invested in the Investment
Subaccounts in the proportions selected by the Participant
or the Employee.
A Participant or an Employee will be 100% vested with
respect to any rollover amounts credited to his Account,
and such amounts will not be subject to forfeiture for any
reason.
The term "amounts transferred from other qualified plans"
will mean: (a) amounts transferred to this Plan directly
from another qualified plan; (b) lump sum distributions
received by a Participant or an Employee from another
qualified plan which are eligible for tax free rollover to
a qualified plan and which are transferred by the
Participant or the Employee to this Plan within sixty (60)
days following his receipt thereof; (c) amounts transferred
to this Plan from a conduit individual retirement account
provided that the conduit individual retirement account has
no assets other than assets which (1) were previously
distributed to the Participant or the Employee by another
qualified corporate or noncorporate plan as a lump sum
distribution, (2) were eligible for tax-free rollover to a
qualified corporate or noncorporate plan and (3) were
deposited in such conduit individual retirement account
within sixty (60) days of receipt thereof, and other than
earnings on said assets; and (d) amounts distributed to the
Participant or the Employee from a conduit individual
retirement account meeting the requirements of clause (c)
above, and transferred by the Participant or the Employee
to this Plan within sixty (60) days of his receipt thereof
from such conduit individual retirement account. Prior to
accepting any transfers to which this section applies, the
Administrator may require the Participant or the Employee
to establish that the amounts to be transferred to this
Plan meet the requirements of this section and may also
require the Participant or the Employee to provide an
opinion of counsel satisfactory to the Employer that the
amounts to be transferred meet the requirements of this
section.
For purposes of this section, the term "qualified plan"
will mean any tax qualified plan under Code section 401(a).
5.4 Time of Payment of Contributions
Salary-Reduction Contributions that have been accumulated
through payroll deductions will be paid to the Funding
Agent by the Trustee as of the earliest date on which such
Contributions can reasonably be segregated from the
Employer's general assets, but in any event, within 90 days
from the date on which such amounts would have been payable
to the Participant in cash. The provisions of Department
of Labor Regulation 2510.3-102 are incorporated herein by
reference.
All Contributions of the Employer will be paid to the
Funding Agent by the Trustee, and payment will be made not
later than the date prescribed by law by the Trustee for
filing the Employer's Federal income tax return, including
extensions that have bean granted for the filing of such
tax return.
5.5 Discontinuance of Salary-Reduction Contributions
Upon advance written notice to the Employer, a Participant
may discontinue all, or a portion, of his Salary-Reduction
Contributions at any time. He may recommence any Salary-
Reduction Contributions at any time.
5.6 Maximum Contributions
(a) Notwithstanding anything in the Plan to the
contrary, the Annual Additions under this Plan for
any Participant in any Limitation Year, when added
to the Annual Additions that Year for such
Participant under any other defined contribution
plan maintained by the Employer, will not exceed
the lesser of:
(1) $30,000* or, if greater one-fourth of the
dollar limitation in effect under Code
section 415(b)(1)(A) or
(2) 25% of the Participant's "415 Compensation."
This limitation will not apply to any
contribution for medical benefits (within the
meaning of Code sections 401(b) or
419A(f)(2)) which is otherwise treated as an
"Annual Addition" hereunder.
*This amount may be adjusted annually as provided
in Code section 415(d) pursuant to Regulations.
The adjusted limitation is effective as of the
January 1st of each calendar year and is applicable
to Limitation Years ending with or within that
calendar year.
(b) For purposes of applying the limitations of Code
section 415, "Limitation Year" will mean a calendar
year. If a Short Limitation Year is created
because of an amendment changing the Limitation
Year to a different 12 consecutive month period,
the maximum amount of Annual Addition for such
Short Limitation Year will not exceed the dollar
amount specified in Code section 415(b)(1)(A)
multiplied by the following fraction:
Number of Months in Short Limitation Year
12
(c) For purposes of applying the limitations of Code
section 415, "Annual Additions" means the sum
credited to a Participant's Account for any
Limitation Year of:
(1) employer contributions;
(2) employee contributions;
(3) forfeitures, if any;
(4) amounts allocated to an individual medical
benefit account as defined in Code section
415(1)(2) which is part of a pension or
annuity plan maintained by the Employer; and
(5) amounts derived from contributions paid or
accrued, which are attributable to post-
retirement medical benefits allocated to the
separate account of a key employee (as
defined in Code section 419A(d)(3)) under a
welfare benefit fund (as defined in Code
section 419(a)) maintained by the Employer.
For purposes of applying the limitations of Code
section 415, the transfer of funds from one
qualified plan to another is not an Annual
Addition. In addition, if the Plan permits any of
the following payments or contributions, such
amounts will not be treated as employee
contributions for purposes of paragraph (2) of this
subsection: (i) rollover contributions; (ii)
repayments of loans made to the Participant from
the Plan; (iii) repayments of distributions
received by a Participant pursuant to Code sections
411(a)(7)(B) or 411(a)(3)(D); (iv) employee
contributions to a simplified employee pension plan
excludable from gross income under Code section
406(k)(6); and (v) excess of a Participant's
elective deferrals, as defined in regulation
1.402(g)-(1)(b) over the applicable Code section
402(g)(1) limit for the taxable year, provided that
such excess deferral is distributed to the
Participant no later than the first April 15th
following the close of his taxable year.
(d) For purposes of applying the limitations of Code
section 415, "415 Compensation" means the
Participant's wages, salaries, fees for
professional services and other amounts for
personal services actually rendered in the course
of employment with an Employer maintaining the Plan
(including, but not limited to, commissions paid to
salesmen, compensation for services on the basis of
a percentage of profits, commissions on insurance
premiums, and tips and bonuses).
415 Compensation will exclude (1) contributions
made by the Employer to a plan of deferred
compensation to the extent that the contributions
are not includible in the gross income of the
Employee for the taxable year in which contributed;
(2) Employer contributions made on behalf of an
Employee to a simplified employee pension plan
described in Code section 408(k) to the extant such
contributions are not includible in the Employee's
gross income; (3) amounts realized from the sale,
exchange or other disposition of stock acquired
under a qualified stock option; and (4) other
amounts which receive special tax benefits, such as
premiums for group term life insurance (but only to
the extent that the premiums for group term life
insurance are includible in the gross income of the
Employee) or contributions made by the Employer
(whether or not under a salary reduction agreement)
toward the purchase of any annuity contract
described in Code section 403(b) (whether or not
the contributions are excludible from the gross
income of the Employee).
(e) If a Participant is also covered under a defined
benefit plan maintained by the Employer in any
Limitation Year, in no event may the sun of his
Defined Benefit Plan Fraction (described in (1)
below) and his Defined Contribution Plan Fraction
(described in (2) below) for such Year exceed 1.0.
In the event that the sum of the fractions
described in (1) and (2) below would exceed 1.0 in
any Limitation Year, the benefit under the defined
benefit plan will be reduced so that the sum of the
fractions equals 1.0.
For any Limitation Year:
(1) A Participant's Defined Benefit Plan Fraction
for such Year is a fraction, the numerator of
which is the "projected annual benefit"
(determined pursuant to Regulation 1.415-
7(b)(3)) of the Participant under all defined
benefit plans maintained by the Employer
(whether or not terminated) as of the end of
such Year, and the denominator of which is
the lesser of:
(A) the product of 1.25 and $90,000* or the
dollar limitation in effect for such
Year under the Plan, and
(B) the product of 1.4 and the amount that
may be taken into account under Code
section 415(b)(1)(B) for such Year.
(2) A Participant's Defined Contribution Plan
Fraction is a fraction, the numerator of
which is the sum of the Annual Additions made
under all defined contribution plans
maintained by the Employer (whether or not
terminated) for such Participant for all
Limitation Years up to and including the
current Limitation Year, and the denominator
of which is, for each Limitation Year in
which the Participant is employed by the
Employer up to and including the current
Limitation year, the lesser of:
(A) the product of 1.25 and $30,000* or the
dollar limitation in effect for such
Year under this Plan, and
(B) the product of 1.4 and the amount that
may be taken into account under Code
section 415(c)(1)(B) for such Year.
*These amounts may be adjusted annually as
provided in Code section 415(d) pursuant to
Regulations. The adjusted limitation is
effective as of the January 1st of each
calendar year and is applicable to Limitation
Years ending with that calendar year.
(f) In determining the Defined Benefit Plan Fraction
and the Defined Contribution Plan Fraction, the
accrued benefits and Annual Additions made for the
Participant under any plan maintained by the
"Employer" will be considered. For this purpose,
"Employer" means the Employer which maintains this
Plan and any Affiliate.
(g) For purposes of this section, all qualified defined
benefit plans (whether terminated or not) ever
maintained by the Employer will be treated as one
defined benefit plan, and all qualified defined
contribution plans (whether terminated or not) ever
maintained by the Employer will be treated as one
defined contribution plan.
(h) As soon as is administratively feasible after the
end of the Limitation Year, the maximum "Annual
Additions" under this Plan and any other defined
contribution plan maintained by the Employer will
be determined on the basis of the Participant's
actual 415 Compensation for the Limitation Year.
(i) If a reasonable error is made in estimating a
Participant's 415 Compensation or other facts and
circumstances exist to which Regulation 1.415-
6(b)(6) will be applicable, and as a result, the
Annual Additions under this Plan would cause the
maximum Annual Additions to be exceeded for any
Participant, the Administrator will (1) return any
nondeductible voluntary employee contributions, or
elective deferrals (within the meaning of Code
section 402(g)(3)) credited for the Limitation Year
to the extent such return would reduce the Excess
Amount in the Participant's Account, (2) hold any
Excess Amount in a Section 415 Suspense Account,
(3) use the Section 415 Suspense Account in the
next Limitation Year (and succeeding Limitation
Years if necessary) to reduce Employer
Contributions for that Participant if that
Participant is covered by the Plan as of the end of
the Limitation Year or if the Participant is not so
covered, allocate and reallocate the section 415
Suspense Account in the next Limitation Year (and
succeeding Limitation Years if necessary) to all
Participants in the Plan before any Employer
Salary-Reduction Contributions are made to the Plan
for such Limitation Year and (4) reduce Employee
Contributions to the Plan for such Limitation Year
by the amount of the Section 415 Suspense Account
allocated and reallocated during such Limitation
Year.
(j) For purposes of this section, "Excess Amount" for
any Participant for a Limitation Year will mean the
excess, if any, of (1) the Annual Additions which
would be credited to the Participant's Account
under the terms of the Plan without regard to the
limitations of Code section 415 over (2) the
maximum Annual Additions determined pursuant to
this section.
(k) "Section 415 Suspense Account" will mean an
unallocated account equal to the sum of Excess
Amounts for all Participants in the Plan during the
Limitation Year, reduced by any returns made in
accordance with this section.
(l) The Plan may not distribute Excess Amounts from the
Section 415 Suspense Account to Participants or
former Participants.
5.7 Actual Deferral Percentage Tests
For the purposes of this section, Compensation has the
meaning given such term by Code section 414(s) and the
Regulations issued thereunder.
(a) For each Plan Year, the annual amount of Salary-
Reduction Contributions made on behalf of a
Participant will satisfy one of the following
tests:
(1) The Actual Deferral Percentage for the Highly
Compensated Participant group will not be
more than the Actual Deferral Percentage of
the Non-Highly Compensated Participant group
multiplied by 1.25 or
(2) The excess of the Actual Deferral Percentage
for the Highly Compensated Participant group
over the Actual Deferral Percentage for the
Non-Highly Compensated Participant group will
not be more than two percentage points or
such lesser amount determined pursuant to
Regulations to prevent the multiple use of
this alternative limitation with respect to
any Highly Compensated Participant.
Additionally, the Actual Deferral percentage
for the Highly-Compensated Participant group
will not exceed the Actual Deferral
Percentage for the Non-Highly Compensated
Participant group multiplied by 2.
(b) "Actual Deferral Percentage" for a Plan Year means,
with respect to the Highly Compensated Participant
group and Non-Highly Compensated Participant group,
the average of the ratios, calculated separately
for each Participant in such group, of the amount
of Salary-Reduction Contributions made on behalf of
each Participant for such Plan Year to such
Participant's Compensation for such Plan Year.
Such ratios will be calculated to the nearest one-
hundredth of one percent. Compensation will be
limited to only that Compensation received by the
Employee while he was a Participant in the Plan.
For the purpose of determining the Actual Deferral
Percentage of a Highly Compensated Participant, the
Salary-Reduction Contributions, and Compensation of
Family Members, and such affected Family Members
will be disregarded in determining the Actual
Deferral Percentage for the Non-Highly Compensated
Participant group.
For the purpose of determining the Actual Deferral
Percentage of a Highly Compensated Employee who is
subject to the Family Member aggregation rules of
Code section 414(q)(6) because such Participant is
either a "five percent owner" of the Employer or
one of the ten (10) Highly Compensated Employees
during the year, the following will apply:
(1) The combined Actual Deferral Percentage for
the family group (which will be treated as
one Highly Compensated Participant) will be
determined by aggregating Salary-Reduction
Contributions and Compensation of all
eligible Family Members (including Highly
Compensated Participants).
(2) The Salary-Reduction Contributions and
Compensation of all Family Members will be
disregarded for purposes of determining the
Actual Deferral Percentage of the Non-Highly
Compensated Participant group except to the
extent taken into account in paragraph (1)
above.
(3) If a Participant is required to be aggregated
as a member of more than one family group in
a plan, all Participants who are members of
those family groups that include the
Participant are aggregated as one family
group in accordance with paragraphs (1) and
(2) above.
(4) If the determination and correction of Excess
Contributions of a Highly Compensated
Participant whose actual deferral ratio is
determined under the family aggregation
rules, then the actual deferral ratio will be
reduced by the "leveling method" described in
Reg. 1.401(k)-l(b)(2), and the Excess
Contributions for the family unit will be
allocated among the Family Members in
proportion to the contributions of each
Family Member that were combined to determine
the group actual deferral ratio.
Notwithstanding the foregoing, with respect
to Plan Years beginning prior to January l,
1990, compliance with the Regulations then in
effect will be deemed to be in compliance
with this paragraph.
"Excess Contributions" means, with respect to a
Plan Year, the excess of Employee Salary-Reduction
Contributions of Highly Compensated Participants
for the Plan Year over the maximum amount of such
contributions permitted an Annual Addition. Excess
Contributions will be treated as an Annual
Addition.
(c) "Highly Compensated Participant" means a
Participant who is a highly compensated employee as
described in Code section 414(q) and the
Regulations thereunder and generally means an
Employee who performed services for the Employer
during the "determination year" and is in one or
more of the following groups:
(1) Employees who at any time during the
"determination year" or "look-back year" were
"five percent owners." "Five-percent owner"
means any person who owns (or is considered
as owning within the meaning of Code section
318) more than 5% of the outstanding stock of
the Employer or stock possessing more than 5%
of the total combined voting power of all
stock of the Employer or, in the case of an
unincorporated business, any person who owns
more than 5% of the capital or profits
interest in the Employer. In determining
such percentage of ownership, employers that
would otherwise be aggregated under Code
sections 414(b), (c) and (m) will be treated
as separate employers.
(2) Employees who received "415 Compensation"
during the "look-back year" from the Employer
in excess of $75,000.
(3) Employees who received "415 Compensation"
during the "look-back year" from the Employer
in excess of $50,000 and were in the Top Paid
Group of Employees for the Plan Year.
(4) Employees who during the "look-back year"
were officers of the Employer (as that term
is defined within the meaning of the
Regulations under Code section 416) and
received "415 Compensation" during the "look-
back year" from the Employer greater than 50
percent of the limit in effect under Code
section 415(b)(1)(A) for any such Plan Year.
The number of officers will be limited to the
lesser of (i) 50 employees; or (ii) the
greater of 3 employees or 10 percent of all
employees. If the Employer does not have at
least one officer whose annual "415
Compensation" is in excess of 50 percent of
the Code section 415(b)(1)(A) limit, then the
highest paid officer of the Employer will be
treated as a Highly Compensated Employee.
(5) Employees who are in the group consisting of
the 100 Employees paid the greatest "415
Compensation" during the "determination year"
and are also described in (2), (3) or (4)
above when these paragraphs are modified to
substitute "determination year" for "look-
back year."
The "determination year" will be the Plan Year for
which testing is being performed, and the "look-
back year" will be the immediately preceding
twelve-month period. However, if the Plan Year is
a calendar year, or if another Plan of the Employer
so provides, then the "look-back year" will be the
calendar year ending with or within the Plan Year
for which testing is being performed, and the
"determination year" (if applicable) will be the
period of time, if any, which extends beyond the
"look-back year" and ends on the last day of the
Plan Year for which testing is being performed (the
"lag period"). With respect to this election, it
will be applied on a uniform and consistent basis
to all plans, entities, and arrangements of the
Employer.
"Highly Compensated Former Employee" means a former
Employee who had a separation year prior to the
"determination year" and was a Highly Compensated
Employee in the year of separation from service or
in any "determination year" after attaining age 55.
Notwithstanding the foregoing, an Employee who
separated from service prior to 1987 will be
treated as a Highly Compensated Former Employee
only if during the separation year (or year
preceding the separation year) or any year after
the Employee attains age 55 (or the last year
ending before the Employee's 55th birthday), the
Employee either received "415 Compensation" in
excess of $50,000 or was a "five percent owner."
Highly Compensated Former Employees will be treated
as Highly Compensated Employees. The method set
forth in this section for determining who is a
"Highly Compensated Former Employee" will be
applied on a uniform and consistent basis for all
purposes for which the Code section 414(q)
definition is applicable.
For purposes of this section, the determination of
"415 Compensation" will be made by including
amounts that would otherwise be excluded from a
Participant's gross income by reason of the
application of Code sections 125, 402(a)(8),
402(h)(1)(B) and, in the case of Employer
contributions made pursuant to a salary reduction
agreement, Code section 403(b). Additionally, the
dollar threshold amounts specified in (2) and (3)
above will be adjusted at such time and in such
manner as is provided in Regulations. In the case
of such an adjustment, the dollar limits which will
be applied are those for the calendar year in which
the "determination year" or "look-back year"
begins.
"Top Paid Group" will be determined pursuant to
Code section 414(q) and the Regulations thereunder
and generally means the top 20 percent of Employees
who performed services for the Employer during the
applicable year, ranked according to the amount of
"415 Compensation" received from the Employer
during such year. All Affiliated Employers will be
taken into account as a single employer within the
meaning of Code sections 414(b), (c), (m) and (o),
and Leased Employees will be treated as Employees
pursuant to Code section 414(n) or (o). Employees
who are non-resident aliens who received no earned
income (within the meaning of Code section
911(d)(2)) from the Employer constituting United
States source income within the meaning of Code
section 861(a)(3) will not be treated as Employees.
Additionally, for the purpose of determining the
number of active Employees in any year, the
following additional Employees will also be
excluded, however, such Employees will still be
considered for the purpose of identifying the
particular Employees in the Top Paid Group:
(a) Employees with less than six (6) months of
service;
(b) Employees who normally work less than 17-1/2
hours per week;
(c) Employees who normally work less than six (6)
months during a year; and
(d) Employees who have not yet attained age 21.
In addition, if 90 percent or more of the Employees
of the Employer are covered under agreements the
Secretary of Labor finds to be collective
bargaining agreements between Employee
representatives and the Employer, and the Plan
covers only Employees who are not covered under
such agreements, then Employees covered by such
agreements will be excluded from both the total
number of active Employees as well as from the
identification of particular Employees in the Top
Paid Group.
The foregoing exclusions set forth in this section
will be applied on a uniform and consistent basis
for all purposes for which the Code section 414(q)
definition is applicable.
(d) "Non-Highly Compensated Participant" means any
Participant who is neither a Highly Compensated
Participant nor a Family Member (as that term is
defined in Code section 414(q)(6)(B)).
(e) For purposes of this section, the Highly
Compensated Participant group and Non-Highly
Compensated Participant group will include all
Employees eligible to make Salary-Reduction
Contributions, whether or not such Employees
actually make such Contributions.
(f) For purposes of this section, if two or more plans
which include cash or deferred arrangements are
considered one plan for the purposes of Code
section 401(a) or 410(b), the cash or deferred
arrangements included in such plans will be treated
as one arrangement. For Plan Years beginning after
December 31, 1989, plans may be aggregated
hereunder only if they have the same plan year.
Notwithstanding the above, for Plan Years beginning
after December 31, 1988, an employee stock
ownership plan described in Code section 4975(e)(7)
may not be combined with this Plan for purposes of
determining whether the employee stock ownership
plan or this Plan satisfies this section and Code
sections 401(a)(4), 410(b) and 401(k).
(g) In the event that the initial allocation of the
Participant's Salary-Reduction Contributions does
not satisfy one of the tests set forth in this
section, the Plan may use any one or a combination
of the following:
(1) The Employer may make a contribution on
behalf of the Non-Highly Compensated
Participants in an amount sufficient to
satisfy one of the tests. Such contributions
will hereinafter be referred to as the
Employer's Qualified Non-Elective
Contributions and will be allocated to each
Non-Highly Compensated Participant's Account
in the same proportion that each Non-Highly
Compensated Participant's Compensation for
the Plan Year bears to the total Compensation
of all Non-Highly Compensated Participants
for such Plan Year.
(2) The Employer may make a matching contribution
on behalf of the Non-Highly Compensated
Participants who have elected to make Salary-
Reduction Contributions during the Plan Year
in an amount based on a percentage of such
Salary-Reduction Contributions sufficient to
satisfy one of the tests. Such contributions
will hereinafter be referred to as the
Employer's Qualified Matching Contributions
and will be allocated to each affected Non-
Highly Compensated Participant's Account for
such Plan Year.
(3) Within two and one-half months following the
end of each Plan Year, each Highly
Compensated Participant, beginning with the
Participant having the highest Actual
Deferral Percentage will have the portion of
his Salary-Reduction Contributions which is
in excess of the limit (and any income or
losses allocable to such excess) distributed
to him until one of the tests is satisfied.
Income and losses allocable to such excess
will be determined in the same manner as
income or losses allocable to "Excess Salary-
Reduction Contributions." If such excess
(plus income or losses allocable thereto) is
not distributed within two and one-half
months after the close of the applicable Plan
Year, it will be distributed no later than
the close of the next following Plan Year and
the Employer will pay a 10% excise tax on the
amount distributed during the succeeding
period. Excess Salary-Reduction
Contributions will be considered Annual
Additions for the Limitation year in which
such contributions were made.
With respect to items (1) and (2) of this
subsection: (i) Such contributions will be
made within twelve months after the end of
the Plan Year; and (ii) A separate accounting
will be maintained for the purposes of
excluding such contributions from the "Actual
Contribution Percentage Test."
5.8 Actual Contribution Percentage Tests
For the purposes of this section, Compensation has the
meaning given such term by Code section 414(s) and the
Regulations issued thereunder.
(a) The Actual Contribution Percentage for the Highly
Compensated Participant group will not exceed the
greater of:
(1) 125 percent of such percentage for the Non-
Highly Compensated Participant group; or
(2) the lesser of 200 percent of such percentage
for the Non-Highly Compensated Participant
group, or such percentage for the Non-Highly
Compensated Participant Group plus two
percentage points or such lesser amount
determined pursuant to Regulations to prevent
the multiple use of this alternative
limitation with respect to any Highly
Compensated Participant described in this
section and Code section 401(m)(9)(A). Any
Participant eligible to make voluntary
contributions, if applicable, or to receive
Matching Contributions, if applicable, under
this Plan or under any other Plan maintained
by the Employer will have his Actual
Contribution Percentage reduced pursuant to
Reg. 1.401(m). The provisions of Code
section 401(m) and Regulations 1.401(m)-1(b)
and 1.401(m)-2 are incorporated herein by
reference.
(b) "Actual Contribution Percentage" for a Plan Year
means, with respect to the Highly Compensated
Participant group and Non-Highly Compensated
Participant group, the average of the ratios
(calculated separately for each Participant in each
group) of:
(1) the Participant's voluntary contributions, if
any; and the Employer's Matching
Contributions, if any;
(2) to the Participant's Compensation for such
plan year.
Such ratios will be calculated to the nearest one-
hundredth of one percent.
Only Employer Matching Contributions contributed to
the Plan prior to the end of the succeeding Plan
Year will be considered.
For the purpose of determining the Actual
Contribution Percentage of a Highly Compensated
Employee who is subject to the Family Member
aggregation rules of Code section 414(q)(6) or
because such Employee is either a "five percent
owner" of the Employer or one of the ten (10)
Highly Compensated Employees paid the greatest "415
Compensation" during the year, the following will
apply:
(1) The combined Actual Contribution Percentage
for the family group (which will be treated
as one Highly Compensated Participant) will
be determined by aggregating Employer
Matching Contributions, if any; the voluntary
contributions, if any; and Compensation of
all eligible Family Members (including Highly
Compensated Participants).
(2) The Employer Matching Contributions, if any;
voluntary contributions, if any; and
Compensation of all Family Members will be
disregarded for purposes of determining the
Actual Contribution Percentage of the Non-
Highly Compensated Participant group except
to the extent taken into account in paragraph
(1) above.
(3) If a Participant is required to be aggregated
as a member of more than one family group in
a plan, all Participants who are members of
those family groups that include the
Participant are aggregated as one family
group in accordance with paragraphs (1) and
(2) above.
(c) A Highly Compensated Participant and Non-Highly
Compensated Participant will include any Employee
eligible to make voluntary contributions, whether
or not such Employee actually makes such
contributions, and/or any Employee eligible to have
Employer Matching Contributions made on his behalf,
whether or not such Employee receives such
contributions for the Plan Year.
(d) If two or more plans which include matching
contributions or voluntary contributions, or both,
are considered as one plan for the purposes of Code
section 401(a)(4), 410(b) and 401(m), such plans
will be treated as one arrangement. For Plan Years
beginning after December 31, 1989, plans may be
aggregated under this paragraph (d) only if they
have the same plan years.
Notwithstanding the above, for Plan Years beginning
after December 31, 1988, an employee stock
ownership plan described in Code section 4975(e)(7)
may not be combined with this plan for purposes of
determining whether the employee stock ownership
plan or this Plan satisfies this section and Code
sections 401(a)(4), 410(b) and 401(m).
(e) If a Highly Compensated Participant is a
Participant in two or more plans which include
matching contributions or voluntary contributions,
or both, all such contributions on behalf of such
Highly Compensated Participant will be aggregated
for the purpose of determining the contribution
percentage with respect to such Highly Compensated
Participant.
(f) In the event that neither of the tests specified in
this section are satisfied, the Plan may use one or
a combination of the following:
(1) Within two and one-half months following the
end of each Plan Year, each Highly
Compensated Participant, beginning with the
Participant having the highest Actual
Contribution Percentage, will have the
portion of his Excess Aggregate
Contributions, or, if forfeitable, forfeit
the non-vested Excess Aggregate Contributions
attributable to the Employer Matching
Contributions, if any (and any income or
losses allocable thereto) which is in excess
of the limit (and any income or losses
allocable to such excess) distributed to him
by the "leveling method" described in
Regulation 1.401(k)-1(f)(2) until one of the
tests is satisfied.
Income or losses allocable to such excess
will be determined in the same manner as
income or loss allocable to Excess Salary-
Reduction Contributions.
The distribution and/or Forfeiture of Excess
Aggregate Contributions will be made in the
following order:
(a) If any, voluntary contributions;
(b) If any, Employer Matching Contributions.
Any distribution or Forfeiture of less than
the entire amount of Excess Aggregate
Contributions (and any income or losses
allocable to such excess) will be treated as
a pro-rata distribution. Distribution of
Excess Aggregate Contributions will be
designated by the Employer as a distribution
of Excess Aggregate Contributions (and any
income or losses allocable to such excess).
Forfeitures of Excess Aggregate Contributions
will be treated in accordance with Article V.
"Excess Aggregate Contributions" means, with
respect to any Plan Year, the excess of:
(a) the aggregate amount of Employer
Matching Contributions, if any;
voluntary contributions, if any; over
(b) the maximum amount of such contributions
permitted under the limitations of this
subsection.
If such excess (plus income or loss allocable
thereto) is not distributed within two and
one-half months after the close of the
applicable Plan Year, it will be distributed
no later than the close of the next following
Plan Year and the Employer will pay a 10%
excise tax on the amount distributed after
such two and one-half month period. Excess
voluntary contributions will be considered
Annual Additions for the Limitation year in
which such contributions were made.
If the determination and correction of Excess
Aggregate Contributions of a Highly
Compensated Participant whose Actual
Contribution Percentage is determined under
the family aggregation rules, then the Actual
Contribution Percentage will be reduced and
the Excess Aggregate Contributions for the
family unit will be allocated among the
Family Members in proportion to the sum of
Employer and/or voluntary contributions made
pursuant to the Plan of each Family Member
that were combined to determine the group
Actual Contribution Percentage.
Any distribution of Excess Contributions, or
any distribution or forfeiture of Excess
Aggregate Contributions, will be made in
accordance with Code section 401(a)(4).
Income and losses allocable to such excess
will be determined in the same manner as
income or losses allocable to "Excess Salary-
Reduction Contributions".
(2) The Employer may make a contribution on
behalf of the Non-Highly Compensated
Participants in an amount sufficient to
satisfy one of the tests. Such contributions
will hereinafter be referred to as Employer
Qualified Non-Elective Contributions and will
be allocated to each Non-Highly Compensated
Participant's Account in the same proportion
that each Non-Highly Compensated
Participant's Compensation for the Plan Year
bears to the total Compensation of all Non-
Highly Compensated Participants for such Plan
Year.
(3) The Employer may make a matching
contribution on behalf of the Non-Highly
Compensated Participants who have
elected to make Voluntary Contributions
or Salary-Reduction Contributions during
the Plan Year in an amount based on a
percentage of such Participant
Contributions sufficient to satisfy one
of the tests. Such contributions will
hereinafter be referred to as the
Employer's Qualified Matching
Contributions and will be allocated to
each affected Non-Highly Compensated
Participant's Account for such Plan
Year.
With respect to item (2) and (3) of this
subsection: (i) Such contributions will be
made within twelve months after the end of
the Plan Year; and (ii) A separate accounting
will be maintained for the purposes of
excluding such contributions from the "Actual
Deferral Percentage Test."
ARTICLE VI
DISPOSITION OF CONTRIBUTIONS
6.1 Payments to Funding Agent
Each Contribution made on behalf of a Participant will be
paid to the Funding Agent within the time or times
specified in Article V and will be administered in
accordance with the terms of any Contract between the
Trustee and the Funding Agent.
6.2 Investment Options/Subaccounts
The Funding Agent will maintain, with respect to each
Participant, an individual Investment Subaccount for each
separate investment fund in which a Participant
participates. Participants will be permitted to direct the
Contributions made on their behalf among the Investment
Subaccounts established for this purpose. The Participants
may choose a Fixed Income Investment Subaccount or one or
more Variable Income Investment Subaccounts.
"Fixed Income Investment Subaccount" is a subaccount which
invests in a separate investment fund composed primarily of
debt obligations, such as mortgages and bonds, providing a
fixed rate of investment return.
"Variable Income Investment Subaccount" is a subaccount
which invests in a separate investment fund under which the
value of the deposits to such account will vary, up and
down, to reflect investment income and market value
changes. Any one or any combination of the following types
of securities may be available:
(a) common stocks,
(b) bonds, and
(c) cash and cash equivalents.
At the election of a Participant, a portion of the
Contributions, other than his Voluntary Contributions
Account, made by or on behalf of the Participant may be
used to purchase whole or term life insurance policies on
the life of such Participant. If a Participant makes this
election, the Funding Agent will, in lieu of crediting such
portion to the Participant's Investment Subaccounts under
the Contracts, pay the premium for such whole or term life
insurance policies on behalf of such Participant. The
portion of such contributions which may be used to pay
premiums on such policies will not, with respect to whole
life insurance policies, exceed 50% of the total
contributions made on behalf of the Participant, and will
not, with respect to term life insurance policies, exceed
5% of the total Contributions made on behalf of such
Participant. The Trustee will be the sole owner and
beneficiary of any such life insurance policies with the
right to exercise all policy rights, subject to the
provisions of this Plan and Trust.
If a Participant dies prior to the date on which his policy
is converted or distributed to him in accordance with the
following sentence, the Trustee will pay any death benefits
to the Participant's beneficiary as provided in this Plan.
The Trustee will, (i) convert the entire value of such life
insurance policies to cash at or before the Participant's
retirement so that no portion of such value may be used to
continue life insurance protection beyond retirement date
or (ii) distribute the policy to the Participant. Any such
election by the Participant may be subject to the spousal
consent requirements of Article VII, if applicable.
Effective on and after July 1, 1991, this life insurance
provision will no longer be operative.
6.3 Designation of Contributions to Investment Subaccounts
Subject to the restrictions pertaining to Employer
Contributions set forth below, each Participant will
designate to the Administrator the proportion of each
Contribution made for him which is to be credited to each
of the Investment Subaccounts established for the
Participant by the Funding Agent. Such proportion may be
any integral percentage from 0% to 100%. If no such
designation is made by the Participant before the first
such Contribution is paid to the Funding Agent, 100% of
such Contributions, and 100% of each Contribution on his
behalf thereafter until such designation is made, will be
credited to his Fixed Income Investment Subaccount.
Effective on and after July 1, 1991, all Employer
Discretionary contributions will be credited to the Super
Rite Stock Subaccount. The Participant will not be
permitted to direct or change the investment of any portion
of the Employer Discretionary Contributions.
Effective on and after May 15, 1992, &11 Employer Matching
Contributions will be credited to the Super Rite Stock
Subaccount. The Participant will not be permitted to
direct or change the investment of any portion of the
Employer Matching Contributions.
Subject to the restrictions pertaining to Employer
Contributions set forth above, a Participant may change the
proportion of any Contribution on any April 1, or October 1
made in accordance with Article V which is to be credited
to each Investment Subaccount by notifying the
Administrator when such change is to become effective. No
such changes may be retroactive. Such changed proportion
will apply to such Contributions received by the Funding
Agent on or after the later of the effective date of such
change and the date of receipt of such notification by the
Funding Agent, and will remain in effect until any
subsequent change is made by the Participant.
6.4 Transfers Between Investment Subaccounts
Subject to the restrictions set forth below, a Participant
may transfer amounts between his Investment Subaccounts at
any time.
Effective on and after July 1, 1991, the Participant will
not be permitted to transfer any amounts from his Super
Rite Stock Account attributed to Employer Discretionary
Contributions.
Effective on and after May 15, 1992, the Participant will
not be permitted to transfer any amounts from his Super
Rite Stock Account attributable to Employer Matching
Contributions.
Effective on and after January 1, 1993, any amounts
attributable to Employer Discretionary Contributions and
Employer Matching Contributions transferred by the
Participant from any of the Investment Subaccounts will
only be permitted to be transferred into his Super Rite
Stock Account.
However, in any calendar year, no more than 20% of the
amount of a Participant's Fixed Income Investment
Subaccount at the start of the calendar year may be
transferred. The minimum transfer amount from any
Investment Subaccount is $500, or the dollar value of the
Investment Subaccount, if less. Such transfer will be made
on the date specified, subject to any restrictions imposed
in accordance with the terms of any Contract between the
Trustee and the Funding Agent.
6.5 Valuation of Funds and Allocation of Earnings
As of each December 31, or such other date upon which the
Funding Agent, the Trustee and the Administrator will
mutually agree, the Funding Agent will determine the fair
market value of the Contract, including earnings and losses
on each investment fund, and will adjust each Participant's
Investment Subaccounts in accordance with such valuation.
ARTICLE VII
DISPOSITION OF BENEFITS
7.1. Timing of Distributions
If a Participant retires or otherwise terminates his
employment (for reasons other than death) with the
Employer, the vested portion of his Account will be
distributed to him as of his distribution Date except as
otherwise provided in section 7.2 and as follows:
(a) If the vested portion of the Participant's Account
as of the date of his termination is less than or
equal to $3,500, the participant will be deemed to
have elected a single sum payment and such payment
will be made as soon as practicable following the
date of retirement or termination. The consent of
the Participant will not be required to make such
distribution.
(b) If the vested portion of the Participant's Account
as of the date of his termination is greater than
$3,500, upon advance written notice, a Participant
may request a distribution of all or a part of the
vested portion of his Account at any date on or
after the Participant's day of termination, but not
later than the Participant's Required Beginning
Date.
In no event will distribution of any portion of the
Participant's Account pursuant to this subsection
(b) be made prior to such Participant's Normal
Retirement Date unless the Participant consents.
The consent of the Participant will be obtained in
writing within the 90 day period ending on the date
the Participant's Account is distributed to him.
Notwithstanding anything to the contrary herein, the
consent of the Participant is not required to satisfy the
requirements of Code section 401(a)(9).
Unless a Participant elects to defer payment of his benefit
pursuant to section 7.2, all distributions made pursuant to
this section will commence no later than 60 days after the
end of the Plan Year in which the latest of the following
events occurs: (1) the earlier of age 65 or Normal
Retirement Date, (2) the Participant's 5th anniversary in
the Plan or (3) the Participant's termination date.
The Employer will notify the funding Agent in writing of
the termination date or Distribution Date of each
Participant.
7.2 Deferral of Distribution Date
A retired or terminated Participant may elect, by written
notice to the Funding Agent, to defer his Distribution
Date, but not beyond his Required Beginning Date.
7.3 Method of Distribution
A Participant may elect to receive a distribution of his
Account in any of the following forms:
(a) a single sum payment equal to the value of his
Account;
(b) a fixed dollar annuity which provides for a series
of monthly, quarterly, semi-annual or annual
payments the amount of which is the same each
period and is fixed at the date payments commence;
(c) a systematic withdrawal method providing monthly,
quarterly, semi-annual or annual installments made
over a specified period of time or made in a
specified dollar amount, whichever method is
selected by the Participant, until the
Participant's Account is liquidated. The
Participant may continue to make transfers pursuant
to Article VI. The minimum payment allowable under
this method of distribution is $250. The
Participant must have an Account balance greater
than or equal to $15,000; or
(d) a combination of any or all of a, b, or c.
An election by a married Participant to receive his
benefits in any form other than a "Qualified Joint and
Survivor Life Annuity" providing for payments after his
death to his Eligible Spouse must be made pursuant to a
Qualified Election unless:
(bullet) the Participant does not elect to receive a
distribution of his account in the form of a
life annuity, and
(bullet) this Plan is not a Transferee Plan with
respect to such Participant. This plan will
be considered a "Transferee Plan" with
respect to any Participant if any portion of
his Account is attributable to amounts
transferred from a defined benefit plan,
money purchase plan, stock bonus or profit-
sharing plan which would otherwise provide
for a life annuity form of payment to the
Participant.
Under the "Qualified Joint and Survivor Annuity" the first
payment is made to the Participant as of his Distribution
Date. Subsequent monthly, quarterly, semi-annual or annual
payments are made to the Participant each period thereafter
throughout his remaining lifetime, terminating with the
last payment before his death. Following the Participant's
death, payments are continued to the Participant's Eligible
Spouse. The payment to the Eligible Spouse is equal to 50%
of the monthly payment which was payable to the Participant
during the Participant's lifetime.
Any annuity form must provide for payment to be made over:
(1) the life of the Participant;
(2) the lives of the Participant and his Eligible
Spouse if payments are to be made to the spouse,
otherwise his designated beneficiary;
(3) a period not extending beyond the Participant's
life expectancy; or
(4) period not extending beyond the life expectancy of
the Participant and his Eligible Spouse, if
applicable, otherwise his designated beneficiary.
A Participant may not elect any form of annuity providing
payments to a contingent annuitant or designated
beneficiary who is other than his spouse, unless the
actuarial value of the annuity benefit expected to be
payable to the Participant is more than 50% of the
actuarial value of the aggregate benefits expected to be
payable under such annuity form. In no event, however, may
the amount of each payment to a contingent annuitant or
designated beneficiary exceed that payable to the
Participant.
7.4 Qualified Election
A "Qualified Election" means an election made by a
Participant (a) to receive benefits in a form other than a
qualified Joint and Survivor Annuity providing for payments
after his death to his Eligible Spouse or (b) to designate
a Beneficiary other than his spouse to receive the death
benefit described in Article VIII.
Any such election must be in writing and must be consented
to by the Participant's spouse. Such election will
designate a beneficiary (or a form of benefit) that may
not be changed without spousal consent (unless the consent
of the spouse expressly permits designations by the
Participant without the requirement of further consent item
the spouse). The spouse's consent must acknowledge the
effect of such election and be witnessed by a Plan
representative or a notary public. Notwithstanding this
consent requirement, if the Participant establishes to the
satisfaction of a Plan representative that such written
consent cannot be obtained because there is no spouse or
the spouse cannot be located, either election described
above by the Participant will be deemed a Qualified
Election. Any consent necessary under this paragraph will
be valid only with respect to the spouse who signs the
consent, or in the event of a deemed Qualified Election,
the designated spouse. Additionally, a revocation of a
prior election may be made by a Participant without the
spouse's consent at any time before a distribution of the
Participant's Account is made. The number of revocations
will not be limited.
The election period to waive the qualified Joint and
Survivor Annuity will be the 90-day period ending on the
Annuity Starting Date. For purposes of this section, the
"Annuity Starting Date" means the first day of the first
period for which an amount is payable as an annuity or as
periodic installments or, in the case of a benefit not
payable in the form of an annuity or as periodic
installments, the date on which the Participant's Account
is distributed to him.
The Administrator will provide to each Participant, no less
than 30 days and no more than 90 days prior to the Annuity
Starting Date, a written explanation, in a manner
calculated to be understood by him, of:
(a) the terms and conditions of the qualified Joint and
Survivor Annuity;
(b) the Participant's right to make, and the effect of,
an election to waive the Qualified Joint and
Survivor Annuity;
(c) the right of the Participant's spouse to consent to
any election to waive the Qualified Joint and
Survivor Annuity
(d) the right of the Participant to revoke such
election, and the effect of such revocation.
7.5 Distribution Requirements
The requirements of this section will apply to any
distribution of a Participant's interest and will take
precedence over any inconsistent provisions of this Plan.
(a) All distributions made pursuant to this Plan will
comply with Code section 401(a)(9) and the
Regulations issued thereunder, and requirements
similar to the incidental death benefit requirement
of Code section 401(a).
(b) "Required Beginning Date": The entire interest of
a Participant must be distributed or begin to be
distributed no later than the Participant Required
Beginning Date. The Required Beginning Date of a
Participant who has not attained age 70 1/2 prior
to January 1, 1989 is April 1 of the calendar year
following the calendar year in which the
Participant attains age 70 1/2, whether or not such
Participant has retired. The Required Beginning
Date of a Participant who attained age 70 1/2
before January 1, 1989 is April 1 of the calendar
year following the calendar year in which the later
of retirement or attainment of age 70 1/2 occurs.
The Required Beginning Date of a Participant who
attains age 70 1/2 during 1988 and who has not
retired as of January 1, 1989 is April 1, 1990.
Notwithstanding the preceding, if a Participant is
a Five-Percent Owner, his Required Beginning Date
is April 1 of the calendar year following the
calendar year in which the Participant attains age
70 1/2, regardless of when such Participant
attained age 70 1/2 and whether or not he is
retired.
(c) Limits on Distribution Periods: Distributions, if
not made in a single sum, may only be made over one
of the following periods: (1) the life of the
Participant; (2) the lives of the Participant and
his spouse if payments are to be made to the
spouse, otherwise his designated Beneficiary; (3) a
period certain not extending beyond the
Participant's life expectancy; or (4) a period
certain not extending beyond the life expectancy of
the Participant and his spouse if applicable,
otherwise his designated Beneficiary.
(d) Minimum Distributions -- Annuities: If the
Participant's benefit is distributed in the form of
an annuity purchased from a Funding Agent,
distributions thereunder will be made in accordance
with the requirements of Code section 401(a)(9) and
the Regulations thereunder.
(e) If a Participant dies after distribution of his
interest has begun, the remaining portion of his
interest will be distributed at least as rapidly as
under the form of benefit being used on the date of
his death.
7.6 In-Service Withdrawals:
(a) Voluntary Contributions:
A Participant may elect, while in the employ of the
Employer, to withdraw any or all of the portion of
his Account which is attributable to his Voluntary
Contributions and any income or earnings thereon.
(b) Salary-Reduction Contributions:
A Participant may elect, while in the employ of the
Employer, to withdraw all or a portion of his
Account attributable to Salary-Reduction
Contributions upon the first to occur of:
(1) his attainment of age 59 1/2, and
(2) proven "Financial Hardship".
Effective January 1, 1989, withdrawals for proven
Financial Hardship will be limited to:
(1) the Participant's Salary-Reduction
Contributions, and, if applicable, any
Qualified Non-Elective Employer Contributions
and/or Qualified Matching Contributions made
on behalf of such Participant, made before
January 1, 1989, and any income or earnings
credited thereon through December 31, 1988,
and
(2) the Participant's Salary-Reduction
Contributions made after January 1, 1989,
without regard to any income or earnings
thereon, and, if applicable, without regard
to the portion of his Account attributable to
any Qualified Non-Elective Employer
Contributions and/or Qualified Matching
Contributions and income or earnings thereon.
"Financial Hardship" means the immediate financial
need of a Participant associated with the following
circumstances:
(1) medical expenses for the Participant, spouse
or dependents;
(2) tuition and related educational expenses for
the Participant, spouse or dependents;
(3) purchase or substantial rehabilitation of a
principal residence, or the principal
residence of a member of the Participant's
immediate family within the meaning of Code
section 267(c)(4); or
(4) such other circumstances as the Plan
Administrator may determine within the intent
of this section.
In the event of such hardship withdrawal, the
Participant may continue his participation in the
Plan without interruption.
A Participant will not be permitted to make a
hardship withdrawal under this section unless he
has already withdrawn any amount credited to his
Voluntary Contribution Account, if any.
(c) Matching Contributions:
A Participant may elect, while in the employ of the
Employer, to withdraw for a "Financial Hardship" as
defined above, any or all of the portion of his
Account which is attributable to the Employer's
Matching Contributions which have accumulated for
three (3) years following the date of employment of
the Participant with the Employer.
(d) Rollovers:
A Participant may elect, while in the employ of the
Employer, to withdraw any or all of the portion of
his Account which is attributable to his Rollover
Contributions.
(e) PAYSOP Contributions:
A Participant may elect, while in the employ of the
Employer, to withdraw any or all of the portion of
his Account which is attributable to the Employer's
PAYSOP Contributions.
However, no distribution from the Employer's PAYSOP
Contributions Account will occur before the end of
the 84th month beginning after the month in which
the PAYSOP Contributions were allocated to the
Participant's Super Rite Stock Account.
Any withdrawal made pursuant to this section will be
subject to the spouse's written consent, in the manner
described in this Article.
7.7 Pre-Retirement Distributions
At such time as a Participant will have attained age 59
1/2, the Administrator, at the election of the Participant,
will direct the Funding Agent to distribute all or a
portion of the Participant's Account.
However, no distribution from the Participant's Account
will occur prior to 100% vesting or, if from the Employer's
PAYSOP Contributions account, no before the end of the 84th
month beginning after the month in which the PAYSOP
Contributions were allocated to the Participant's Super
Rite Stock Account. In the event that such distribution is
made, the Participant, nevertheless, will continue to be
eligible to participate in the Plan on the same basis as
any other Participant.
7.8 Loans
Loans may be granted to Participants, subject to any
restrictions imposed by the Funding Agent. Loans will be
made under the following circumstances: (a) loans will be
made available to all Participants from each Participant's
Account on a reasonably equivalent basis, (b) loans will
not be made available to Highly Compensated Participants,
officers, or shareholders in an amount greater than the
amount made available to other Participants, (c) loans will
bear a reasonable rate of interest, (d) loans will be
adequately secured, and (e) loans will provide for
repayment over a reasonable period of time.
On and after July 1, 1991, only two (2) outstanding loans
at a time are permitted for each Participant taking a loan.
Loans made pursuant to this section (when added to the
outstanding balance of all other loans made by the Plan to
the Participant) will be limited to the lesser of:
(A) $50,000 reduced by the excess (if any) of the
highest outstanding balance of loans from the Plan
of the Participant during the one year period
ending on the day before the date on which such
loan is made, over the outstanding balance of loans
from the Plan to the Participant on the date on
which such loan was made, or
(B) one-half (1/2) of the vested portion of such
Participant's Account maintained on behalf of the
Participant under the Plan.
For purposes of this limit, all plans of the Employer will
be considered one Plan.
Any loan made to a Participant will be subject to the
spouse's written consent, in the manner described in this
Article, if this Plan is a transferee plan with respect to
such Participant.
Anything herein to the contrary notwithstanding, loans will
not be made to any shareholder-employee or owner-employee
unless an exemption for such loan is obtained pursuant to
Act section 408 and further provided that such loan would
not be subject to tax pursuant to Code section 4975. For
purposes of this requirement, a shareholder-employee means
an employee or officer of an electing small business
(Subchapter S) corporation who owns (or is considered as
owning within the meaning of Code section 318(a)(1)), on
any day during the taxable year of such corporation, more
than 5% of the outstanding stock of the corporation.
ARTICLE VIII
DEATH BENEFITS
8.1 Preretirement Death Benefits
Unless the Participant makes a Qualified Election, his
Eligible Spouse will be his designated Beneficiary. Upon
the death of such Participant before his Distribution Date,
100% of his Account will be applied to purchase an annuity
for the life of the Participant's designated Beneficiary,
unless the designated Beneficiary elects a different form
of benefit as provided in item (a) following:
(a) The designated Beneficiary, unless the Participant
has directed otherwise, may elect to receive his
distribution under a method described in Article
VII.
(b) Distributions in other than the single payment form
will be subject to the following conditions:
(1) If the designated Beneficiary is the
Participant's Eligible Spouse,
(A) such distribution form must provide for
payment to be made over the life of the
Eligible Spouse (or over a period not
exceeding the life expectancy of the
Eligible Spouse), and
(B) such distribution must commence to the
Eligible Spouse on or before the later
of (i) December 31 of the calendar year
immediately following the calendar year
in which the Participant dies and
(ii) December 31 of the calendar year in
which the Participant would have
attained age 70 1/2.
(2) If the designated Beneficiary is other than
the Participant's Eligible Spouse,
(A) such distribution form must provide for
payment to be over the life of the
designated Beneficiary (or over a period
not exceeding the life expectancy of the
designated Beneficiary), and
(B) such distribution must commence on or
before December 31 of the calendar year
immediately following the calendar year
in which the Participant died.
(c) If the single payment form of distribution is
elected by the Eligible Spouse or designated
Beneficiary, the total value of the Participant's
Account must be distributed by December 31 of the
calendar year containing the fifth anniversary of
the Participant's death.
(d) In no event will an annuity distribution be
permitted under this section if the value of the
portion of the Participant's Account being used to
purchase such annuity is not in excess of $3,500.
8.2 Postretirement Death Benefits
Any payments after the death of a Participant for whom an
annuity has been purchased, will be paid in accordance with
the terms of the annuity form selected. Payments to a
Beneficiary must be made at least as rapidly as such
payments were being made to the Participant. If an annuity
has not been purchased for such Participant, then unless
the Participant has directed otherwise the Beneficiary may
elect to receive his benefit under any of the methods of
distribution described in Article VII.
8.3 Distribution Requirements
All distributions made pursuant to this Article will comply
with Code section 401(a)(9) (including, but not limited to,
the minimum distribution rules) and the Regulations issued
thereunder and requirements similar to the incidental death
benefit requirements of Code section 401(a).
ARTICLE IX
GENERAL PROVISIONS
9.1 Nonalienation of Benefits
(a) Subject to the exceptions provided below, no
benefit which will be payable to any person out of
the Trust Fund (including a Participant or his
Beneficiary) will be subject in any manner to
anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, or charge, and any
attempt to anticipate, alienate, sell, transfer,
assign, pledge, encumber, or charge the same will
be void; and no such benefit will in any manner be
liable for, or subject to, the debts, contracts,
liabilities, engagements, or torts of any such
person, nor will it be subject to attachment or
legal process for or against such person, and the
same will not be recognized except to such extent
as may be required by law.
(b) This section will not apply to the extent a
Participant is indebted to the Plan, by reason of a
qualified plan loan under this Plan. At the time a
distribution is to be made to or for a
Participant's or Beneficiary's benefit, such
proportion of the amount to be distributed as will
equal such indebtedness will be paid to the Plan,
to apply against or discharge such indebtedness.
Prior to making a payment, however, the Participant
or Beneficiary must be given written notice by the
Administrator that such indebtedness is to be paid
in whole or part from the Participant's Account.
If the Participant or Beneficiary does not agree
that the indebtedness is a valid claim against the
Participant's Account, he will be entitled to a
review of the validity of the claim in accordance
with procedures provided in Article III.
(c) This provision will not apply to a "qualified
domestic relations order" defined in Code section
414(p), and those other domestic relations orders
permitted to be so treated by the Administrator
under the provisions of the Retirement Equity Act
of 1984. The Administrator will establish a
written procedure to determine the qualified status
of domestic relations orders and to administer
distributions under such qualified orders.
Further, to the extent provided under a "qualified
domestic relations order", a former spouse of a
Participant will be treated as the Eligible Spouse
for all purposes under the Plan.
9.2 Nonguarantee of Employment
The adoption of the Plan will not be deemed to be a
contract between the Employer and any Participants.
Nothing contained in the Plan will be deemed to give any
Participant the right to be retained in the employ of the
Employer or to interfere with the managerial prerogatives
and decisions of the Employer.
9.3 Beneficiary
The designation of a Participant's Beneficiary will be made
by filing with the Administrator a written designation
identifying such Beneficiary. Such designation may be
changed or revoked by written notice filed with the
Administrator.
If the Participant's Beneficiary is not a natural person
receiving payments in his own right, then payment will be
made only in a single sum. If more than one Beneficiary of
a Participant is concurrently entitled to receive annuity
payments, or if the monthly annuity payment to any
Beneficiary would be less than $50, or such other amount
established from time to time by the Administrator, and the
value of such benefit is less than or equal to $3,500 (as
described in Regulation 1.417(e)-l(b)), then, the value, as
determined by the Administrator, of such annuity will be
paid in a single sum.
If there is no Beneficiary to receive any amount which
becomes payable to a Beneficiary in accordance with the
terms of the Plan, such amount will be payable to the
estate of the last to die of the Participant, his Eligible
Spouse if any, his contingent annuitant if any, and his
Beneficiary. The Administrator, at its option, may pay any
amount which would otherwise be payable to the estate of
the Participant to any one, or jointly to any number, of
the following surviving relatives of the Participant who
appear to the Administrator to be equitably entitled to
payment because of expenses incurred in connection with the
burial or last illness of the Participant: spouse,
children, parents, brothers, sisters.
9.4 Gender and Headings
Words in the masculine gender will include the feminine,
the singular will include the plural, and vice versa,
unless qualified by the context. Any headings used herein
are included for the ease of reference only, and are not
construed so as to alter any of the terms hereof.
9.5 Construction
The Plan and Trust will be interpreted, administered and
enforced in accordance with the Code and ERISA, and the
rights of Participants, former Participants, Beneficiaries
and all other persons will be determined in accordance
therewith; provided, however, that, to the extent that
state law is applicable, the laws of the state of residence
of the Participant in question, or if none, the state in
which the principal office of the Administrator will apply.
9.6 Plan Document
A copy of the Plan and Trust and any and all future
amendments thereto will be available for inspection at all
reasonable times to all Participants at the office of the
Employer.
9.7 Plan Binding
The Plan and each and every provision thereof will be
binding on the parties hereto and their respective heirs,
executors, administrators and assigns.
9.8 Substitute Payee
The Administrator may refuse to make payment to anyone who,
in its opinion, is incapable of giving a valid receipt of
such payment. Unless and until claim is made by a duly
appointed guardian or committee of such person, the
Administrator may make such payment to any person,
institute or agency then, in the judgment of the
Administrator, contributing toward or providing for the
care and maintenance of such person.
9.9 Dividends
Any dividends credited to a Contract or Contracts between
the Trustee and the Funding Agent will be used to provide
additional benefits under the Plan.
9.10 Location of Participant or Beneficiary
In the event that all, or any portion, of the distribution
payable to a Participant or his Beneficiary hereunder will
remain unpaid at the expiration of five years after it will
become payable, solely by reasons of the inability of the
Administrator, after sending a registered letter, return
receipt requested, to the last known address, and after
further diligent effort, to ascertain the whereabouts of
such Participants or his Beneficiary, the amount so
distributable will be treated as a forfeiture. In the
event a Participant or Beneficiary is located subsequent to
his benefit being forfeited, such benefit will be restored.
Any forfeiture arising pursuant to this section will be
used as specified in Article V.
9.11 Mistake of Fact Contributions
(a) Except as provided below and otherwise specifically
permitted by law, it will be impossible by
operation of the Plan and Trust, by termination, by
power of revocation or amendment, by the happening
of any contingency, by collateral arrangement or by
any other means, for any part of the corpus or
income of the Fund maintained pursuant to the Plan
or any funds contributed thereto to be used for, or
diverted to, purposes other than the exclusive
benefit of Participants, retired Participants, or
their Beneficiaries.
(b) In the event the Employer will make a contribution
under a mistake of fact pursuant to Section
403(c)(2)(A) of the Act, the Employer may demand
repayment of such contribution at any time within
one (1) year following the time of payment and the
Funding Agent will return such amount to the
Employer within the one (1) year period. Earnings
of the Plan attributable to the contributions may
not be returned to the Employer but any losses
attributable thereto must reduce the amount so
returned.
9.12 Payment of Expenses
All expenses of administration may be charged paid out of
the Trust Fund, unless paid by the Employer. Such expenses
will include any expenses incident to the functioning of
the Administrator, including but not limited to, fees of
accountants, counsel, and other specialists and their
agents, and other costs of administering the Plan. Until
paid, the expenses will constitute a liability of the Trust
Fund. However, the Employer may reimburse the Trust Fund
for any administration expense incurred.
9.13 Legal Action
In the event any claim, suit, or proceeding is brought
regarding the Plan and Trust established hereunder to which
the Administrator or a Named Fiduciary may be a party, and
such claim, suit or proceeding is resolved in favor of the
Administrator, Trustee or such Named Fiduciary they will be
entitled to be reimbursed from the Trust Fund for any or
all costs, attorney's fees, and other expenses pertaining
thereto incurred by them for which they will have become
liable. Such expenses may be charged proportionately
against the amount standing to the credit of each
Participant's Account, unless paid by the Employer.
9.14 Bonding
Every Fiduciary, except a bank or an insurance company,
unless exempted by the Act and regulations thereunder, will
be bonded in an amount not less than 10% of the amount of
the funds such Fiduciary handles; provided, however, that
the minimum bond will be $1,000 and the maximum bond,
$500,000.
The amount of funds handled will be determined at the
beginning of each Plan Year by the amount of funds handled
by such person, group, or class to be covered and their
procedessors, if any, during the preceding Plan Year, or if
there is no preceding Plan Year, then by the amount of the
funds to be handled during the then current year. The bond
will provide protection to the Plan against any loss by
reason of acts of fraud or dishonesty by the Fiduciary
alone or in connivance with others. The surety will be a
corporate surety company (as such term is used in Act
Section 412(a)(2)), and the bond will be in a form approved
by the Secretary of Labor. Notwithstanding anything in the
Plan to the contrary, the cost of such bonds will be an
expense of the Plan and may, at the election of the
Administrator, be paid from the Trust Fund or by the
Employer. If such amount is to be paid from the Trust
Fund, such amounts may be charged against the amount
standing to the credit of each Participant's Account.
9.15 Employer's and Trustee's Protective Clause
Neither the Trustee, Employer nor its successor will be
responsible for the validity of any Contract issued
hereunder or for the failure on the part of the Funding
Agent to make payments provided by any such Contract, or
for the action of any person which may delay payment or
render a Contract null and void or unenforceable in whole
or in part.
9.16 Funding Agent's Protective Clause
The Funding Agent who will issue Contracts hereunder will
not have any responsibility for the validity of this Plan
and Trust or for the tax or legal aspects of this Plan.
The Funding Agent will be protected and held harmless in
acting in accordance with any written direction of the
Administrator or the Trustee, and will have no duty to see
to the application of any funds paid to a Trustee, nor be
required to question any actions directed by a Trustee.
Regardless of any provision of this Plan, the Funding Agent
will not be required to take or permit any action or allow
any benefit or privilege contrary to the terms of any
Contract which it issues hereunder, or the rules of the
Funding Agent.
9.17 Approval by the Internal Revenue Service
(a) Notwithstanding anything herein to the contrary,
if, pursuant to a timely application filed by or in
behalf of the Plan, the Commissioner of Internal
Revenue Service or his delegate should determine
that the Plan does not initially qualify as a tax-
exempt plan under Code sections 401 and 501, and
such determination is not contested, or if
contested, is finally upheld, then if the Plan is a
new plan, it will be void ab initio and all amounts
contributed to the Plan, by the Employer, less
expenses paid, will be returned within one year and
the Plan will terminate, and the Funding Agent will
be discharged from all further obligations. If the
disqualification relates to an amended plan, then
the Plan will operate as if it had not been amended
and restated.
(b) Except as specifically stated in the Plan, any
contribution by the Employer to the Trust Fund is
conditioned upon the deductibility of the
contribution by the Employer under the Code and, to
the extent any such deduction is disallowed, the
Employer may within one (1) year following a final
determination of the disallowance, whether by
agreement with the Internal Revenue Service or by
final decision of a court of competent
jurisdiction, demand repayment of such disallowed
contribution and the Funding Agent will return such
contribution within one (1) year following the
disallowance. Earnings of the Plan attributable to
the excess contribution may not be returned to the
Employer, but any losses attributable thereto must
reduce the amount so returned.
ARTICLE X
AMENDMENT OR TERMINATION
10.1 Authority to Amend or Terminate Plan
The Employer intends this Plan to be permanent and to
continue indefinitely but necessarily reserves the right to
terminate it at any time or to modify, alter or amend the
Plan in any respect, retroactively or otherwise at any time
or times. No modification, amendment, termination or any
other change of the Plan may provide that the assets of the
Plan or the income thereon may be used for or diverted to
purposes other than the Plan, nor may any change in the
Plan reduce any vested interest of a Participant at the
time of such change unless such change is executed for the
purpose of securing an opinion from any governmental agency
that the Plan satisfies the requirements of any law or
regulation administered by such agency.
No amendment made to the Plan will decrease the amount of a
Participant's Account or eliminate an optional form of
distribution with respect to amounts in his Account as of
the Effective Date of that amendment, except as provided by
Treasury Regulations. Notwithstanding the preceding
sentence, the amount of a Participant's Account may be
reduced to the extent permitted under Code section
412(c)(8). Furthermore, no amendment made to the Plan will
have the effect of decreasing a Participant's vested right
to his Account determined without regard to such amendment
as of the later of the date such amendment is adopted or
the date it becomes effective.
10.2 Nonforfeitability of Accrued Pension upon Plan Termination
Upon the complete discontinuance of Employer Contributions,
inclusive of Salary-Reduction Contributions, to the Plan or
upon termination or partial termination of the Plan, each
Participant will have a nonforfeitable right to the entire
amount of his Account. Upon such discontinuance or
termination without the establishment of another defined
contribution plan other than an employee stock ownership
plan (as defined in Code section 4975(g) or Code section
409) or a simplified employee pension plan (as defined in
Code section 408(k)), each Participant's Account will be
distributed in a manner which is consistent with and
satisfies the provisions of this Plan regarding
distributions. Except as permitted by Regulations, the
termination of this Plan will not result in the reduction
of Code section 411(d)(6) protected benefits.
10.3 Substitution of Funding Agent
Anything in this Article X to the contrary notwithstanding,
the Employer may at any time change the Funding Agent and
transfer all contributions and the value of all
Participants' Accounts to such successor Funding Agent.
Such transfer will be made in accordance with the terms of
any Contract between the Trustee and the Funding Agent.
Any such change will not be considered a deprivation of any
Participant's rights to, or any reduction in, any benefits
accrued under the Plan.
10.4 Merger or Consolidation
If this Plan merges or consolidates with, or transfer
assets or liabilities to, any other plan, each Participant
covered under this Plan must be entitled to receive a
benefit after the merger, consolidation or transfer which,
if said plan then terminated, would be equal to or greater
than his benefit under this Plan immediately prior to such
merger, consolidation or transfer if this Plan then
terminated.
ARTICLE XI
RULES FOR TOP-HEAVY PLANS
11.1 Top-Heavy Definitions
Special definitions which apply to Top-Heavy Rules are:
(a) "Key Employee" means any Employee or former
Employee (and Beneficiaries of such Employee) who
at any time during the determination period was:
(1) an officer of the Employer (as that term is
defined within the meaning of the Regulation
under Code section 416) having an annual 415
Compensation greater than 50% of the amount
in effect under Code section 415(b)(1)(A) for
any Plan Year, or
(2) an owner (or considered an owner under Code
section 318) of one of the ten largest
interests in the Employer if such
individual's compensation exceeds the dollar
limit specified in Code section 415(c)(1)(A),
or
(3) a more than Five-Percent Owner of the
Employer as defined in Article V, or,
(4) a more than 1% owner of the Employer who has
an annual "415 Compensation" of more than
$150,000. "One percent owner" means any
person who owns (or is considered as owning
within the meaning of Code section 318) more
one percent (1%) of the outstanding stock of
the Employer or stock possessing more than
one percent (1%) of the total combined voting
power of all stock of the Employer or, in the
case of an unincorporated business, any
person who owns more than one percent (1%) of
the capital or profits interest in the
Employer. In determining percentage
ownership hereunder, employers that would
otherwise be aggregated under Code section
414(b), (c) and (m) will be treated as
separate employers. However, in determining
whether an individual has 415 Compensation of
more than $150,000, 415 Compensation from
each employer required to be aggregated under
Code section 414(b), (c) and (m) will be
taken into account.
The determination period of the Plan is the Plan
Year containing the Determination Date and the four
preceding Plan Years. The determination of who is
a Key Employee will be made in accordance with Code
section &16(i)(1) and Regulations thereunder.
(b) "Top Heavy Ratio" means:
(1) If the Employer maintains one or more defined
contribution plans (including any Simplified
Employee Pension Plan) and the Employer has
never maintained any defined benefit plans
which during the five-year period ending on
the Determination Date have covered or could
cover a Participant in this Plan, the Top-
Heavy Ratio is a fraction, the numerator of
which is the sum of the accounts of all Key
Employees as of the Determination Date
(including any part of any accounts
distributed in the five-year period ending on
the Determination Date), computed pursuant to
Code section 415 and the Regulations
thereunder. Both the numerator and
denominator of the Top-Heavy Ratio are
adjusted to reflect any contribution not
actually made as of the Determination Date,
but which is required to be taken into
account under Code section 416 and the
Regulations thereunder.
(2) If the Employer maintains one or more defined
contribution plans (including any Simplified
Employee Pension Plan) and the Employer
maintains or has maintained one or more
defined benefit plans which during the five-
year period ending on the Determination Date
have covered or could cover a Participant in
this Plan, the Top-Heavy Ratio is a fraction,
the numerator of which is the sum of accounts
under the defined contribution plans for all
Key Employees plus the present value of the
accrued benefits under the defined benefit
plans for all Key Employees, and the
denominator of which is the sum of the
accounts under the defined contribution plans
for all participants plus the present value
of the accrued benefits under the defined
benefit plans for all participants,
determined pursuant to Code section 416 and
the Regulations thereunder. Both the
numerator and denominator of the Top-Heavy
Ratio are adjusted for any distribution of an
account or an accrued benefit made in the
five-year period ending on the Determination
Date.
In the case of a defined contribution plan
subject to the minimum requirements of Code
section 412, only contributions actually made
after the Valuation Date, but on or before
the Determination Date, will be included in
the account.
(3) For the purposes of (1) and (2) above, the
value of the account balances and the present
value of accrued benefits will be determined
as of the most recent Valuation Date that
falls within or ends with the 12-month period
ending on the Determination Date, except as
provided in Code section 415 and the
Regulation thereunder for the first and
second plan years of a defined benefit plan.
The account balances and accrued benefits of
a Participant (1) who is not a Key Employee
but who was a Key Employee in a prior Plan
Year, or (2) who has not been credited with
at least one Hour of Service with any
Employer maintaining the Plan at any time
during the 5-year period ending on the
Determination Date will be disregarded. The
calculation of the Top-Heavy Ratio, and the
extent to which distributions, roll-overs,
and transfers are taken into account will be
made in accordance with Code section 416 and
the Regulations thereunder. Deductible
employee contributions will not be taken into
account for the purposes of computing the
Top-Heavy Ratio when aggregating plans, the
value of account balances and accrued
benefits will be calculated with reference to
the Determination Dates that fall within the
same calendar year.
The accrued benefit of a Participant other
than a Key Employee will be determined under
(a) the method, of any, that uniformly
applies for accrual purposes under all
defined benefit plans maintained by the
Employer, or (b) if there is no such method,
as if such benefit accrued not more rapidly
than the slowest accrual rate permitted under
the fractional rule of Code section
411(b)(1)(C).
(c) "Required Aggregation Group" means: (1) each
qualified plan of the Employer in which at least
one Key Employee participates or participated at
any time during the determination period, and (2)
any other qualified plan of the Employer which
enables a plan described in (1) to meet the
requirements of Code section 410 or 401(a)(4).
(d) "Permissive Aggregation Group" means the Required
Aggregation Group of plans plus any other plan or
plans of the Employer which, when considered as a
group with the Required Aggregation Group, would
continue to satisfy the requirements of Code
sections 410 and 401(a)(4).
(e) "Determination Date" means, for any Plan Year
subsequent to the first Plan Year, the last day of
the preceding Plan Year, and for the first Plan
Year of the Plan, the last day of that year.
(f) "Valuation Date" means, for each defined benefit
plan, the date used to determine costs for section
412 of the Federal Internal Revenue Code for the
Plan Year ending on the Determination Date and, for
each defined contribution plan, the last scheduled
date for determining adjusted accounts in the Plan
Year ending on the Determination Date.
(g) "Actuarial Assumptions" means, when used to
determine the present value of accrued benefits for
the Top-Heavy Ratio, The Prudential Insurance
Company of America's 1950 Group Annuity Valuation
Morality Table, set back five years for females
after retirement, and 6% interest.
(h) "Top-Heavy Compensation" means W-2 compensation for
the calendar year ending with or within the Plan
Year.
11.2 Top-Heavy Conditions
This Plan is a "Top-Heavy Plan" for any Plan Year beginning
after December 31, 1983, if any of the following conditions
exist:
(a) the Top-Heavy Ratio for this Plan exceeds 60% and
this Plan is not part of any Required Aggregation
Group or Permissive Aggregation Group of plans, or
(b) this Plan is a part of a Required Aggregation Group
of plans (but is not part of a Permissive
Aggregation Group) and the Top-Heavy Ratio for the
group of plans exceeds 60%, or
(c) this Plan is a part of a Required Aggregation Group
of plans and part of a Permissive Aggregation Group
and the Top-Heavy Ratio for the Permissive Group
Exceeds 60%.
11.3 Changes Required As a Result of Plan Becoming Top-Heavy:
Certain sections for this Plan will be modified if, at the
end of the preceding Plan Year, this is a Top-Heavy Plan.
Such sections and the appropriate modifications are as
follows:
(a) Section 4.2: For any Plan year in which this Plan
is Top-Heavy, the Minimum Vesting Schedule
described below will automatically apply to
Employer Contributions made under this Plan
including any Employer Contribution made before the
Plan became Top-Heavy. Further, no reduction in
vested Employer Contributions may occur in the
event the Plan's status as Top-Heavy changes for
any Plan Year. However, this section does not
apply to the Account of any Participant who does
not have an Hour of Service after the Plan has
initially become Top-Heavy.
The non-forfeitable interest of each Participant in
the portion of his Account attributable to Employer
Contributions will be determined on the basis of
the vesting requirements that apply while the Plan
is not Top-Heavy or the following table, whichever
causes him to vest at an earlier date or provides
him with a larger percentage (the basis that
applies is the "Minimum Vesting Schedule"):
Credited Years Percentage
of Service Vesting
Less than 1 0%
1 or more 100%
The Minimum Vesting Schedule will only apply to the
extent it is more favorable than the vesting
schedule set forth in Article IV.
(b) Section 5.1: Except as otherwise provided below,
Employer Contributions made on behalf of any
Participant* who is a Non-Key Employee, will not be
less than the lesser of 3% of such Participant's
Top-Heavy Compensation, or in the case where the
Employer has no defined benefit plan which
designates this Plan to satisfy Code section 401,
the largest percentage of Employer Contributions,
as a percentage of the first $200,000 of the Key
Employee's Earnings, made on behalf of any Key
Employee for that year. The minimum Employer
Contribution is determined without regard to any
Social Security contribution.
The above will not apply to any Participant who was
not employed by the Employer ont he last day of the
Plan Year. In addition, the above will not apply
to any Participant to the extent the Participant is
covered under any other plan or plans of the
Employer and the Employer has provided that the
minimum contribution or benefit requirement
applicable to Top-Heavy Plans will be met in the
other plan or plans.
* For purposes of this subsection, "Participant" will
include all Employees of the Employer who are
eligible to participate in this Plan regardless of
whether or not such Employees elect to make
contributions hereunder.
(c) Section 5.6: In any Plea Year where the Top-Heavy
ratio exceeds 90% (i.e., the Plan becomes Super
Top-Heavy) the denominators of the Defined Benefit
Fraction and the Defined Contribution Fraction as
defined in Article V, will be computed using 1.0
times the dollar limit instead of 1.25.
11.4 Coordination with Defined Benefit Plan:
If the Employer also maintains a defined benefit plan in
addition to this Plan, the following will apply:
(a) In any Plan Year where the Plan is part of a Top-
Heavy Required Aggregation Group that includes a
defined benefit plan, the minimum benefit required
by Code section 416 will be provided under this
Plan for Participants covered by both plans. The
minimum contribution described in this section for
each Participant who is also a participant in the
defined benefit plan will be 5% of Top-Heavy
Compensation. The minimum contribution to each
Participant in this Plan who is not also a
participant in the defined benefit plan that is
part of the Required Aggregation Group will be 3%
of Top-Heavy Compensation.
(b) In any year where the Plan is part of a Required
Aggregation Group that includes a defined benefit
plan and the plans are Top-Heavy but not Super Top-
Heavy (i.e., the Top-Heavy Ratio does not exceed
90%), the minimum contribution described in this
section for each Participant who also participates
in the defined benefit plan will be 7-1/2% of Top-
Heavy Compensation. The minimum contribution for
each Participant who is covered under this Plan but
not the defined benefit plan that is part of the
Required Aggregation Group will be 4% of Top-Heavy
Compensation. This provision will not apply to any
Participant who was not employed by the Employer on
the last day of the Plan Year. This provision will
not apply to any Participant to the extent the
Participant is covered under any other plan or
plans of the Employer and the Employer has provided
that the minimum allocation or benefit requirement
applicable to Top-Heavy plans will be met in the
other plan or plans.
ARTICLE XII
TRUSTEE
12.1 Establishment of the Trust
(a) The Employer and the Trustee hereby agree to the
establishment of a trust consisting of such sums as
will from time to time be paid to the Trustee under
the Plan and such earnings, income and appreciation
as may accrue thereon, which, less payments made by
the Trustee to carry out the purposes of the plan,
are referred to herein as the Trust Fund. The
Trustee will carry out the duties and
responsibilities herein, specified, but will be
under no duty to determine whether the amount of
any contributions by the Employer or any
Participant is in accordance with the terms of the
Plan nor will the Trustee be responsible for the
collection of any contribution under the Plan.
(b) The Trust Fund will be held, invested, reinvested,
and administered by the Trustee in accordance with
the terms of the Plan and this Agreement solely in
the interest of Participants and their
Beneficiaries and for the exclusive purpose of
providing benefits to Participants and their
Beneficiaries and defraying reasonable expenses of
administering the Plan. Except as provided in
Section 12.7, no assets of the Plan will inure to
the benefit of the Employer.
(c) The Trustee will pay benefits and expenses from the
Trust Fund only upon the written direction of the
Plan Administrator, the Fiduciary named in the Plan
as having the authority to control and manage the
administration of the Plan. The Trustee will be
fully entitled to rely on such directions furnished
by the Plan Administrator, and will be under no
duty to ascertain whether such directions are in
accordance with the provisions of the Plan.
12.2 Investment of the Trust Fund
(a) The Employer will have the exclusive authority and
discretion to select the individual investment
funds available for investment in the Plan. In
making such selection, the Employer will use the
care, skill, prudence and diligence under the
circumstances then prevailing that a prudent person
acting in a like capacity and familiarity with such
matters would use in the conduct of an enterprise
or a like character and with like aims. The
Employer will insure that the available investments
under the plan are sufficiently diversified so as
to minimize the risk of large losses, unless under
the circumstances it is clearly prudent not to do
so.
(b) The Trustee will invest all amounts allocated to
the separate investment accounts of a Participant
as directed in writing by the Participant or Plan
Administrator in accordance with the Plan, which
written directions will be timely furnished to the
Trustee by the Plan Administrator. In making any
investment of the assets of the Trust Fund, the
Trustee will be fully entitled to rely on such
directions furnished by the Plan Administrator and
will be under no duty to make any inquiry or
investigation with respect thereto. If the Trustee
receives any contribution under the Plan that is
not accompanied by written instructions directing
its investment, the Trustee will immediately notify
the Plan Administrator of this fact, and the
Trustee may, in its discretion, hold or return all
or a portion of the contribution uninvested without
liability for loss of income or appreciation
pending receipt of proper investment directors.
Otherwise, it is specifically intended under the
Plan and this Agreement that the Trustee will have
no discretionary authority to determine the
investment of the assets of the Trust Fund.
12.3 Investment Powers and Duties of the Trustee
Subject to the provisions of Section 12.1 and 12.2, the
Trustee will have the authority, in addition to any
authority given by law, to exercise the following powers in
the administration of the Trust:
(a) to invest all or a part of the Trust Fund in
investments available under the Plan in accordance
with the investment directions furnished by the
Plan Administrator without restriction to
investments authorized for fiduciaries, including,
without limitation on the amount that my be
invested therein, any common, collective or
commingled trust fund maintained by the Trustee.
Any investment in, and any terms and conditions of,
any such common, collective or commingled trust
fund available only to Employee trusts which meet
the requirements of the Code or subsequent income
tax laws of the United States will constitute an
integral part of this Agreement and the Plan;
(b) to dispose of all or any part of the investments,
securities or other property which may from time to
time or at any time constitute the Trust Fund in
accordance with the written directions furnished by
the Plan Administrator for the investment of
Participant's separate accounts or the payment of
benefits or expenses of the Plan, and to make,
execute and deliver to the purchasers thereof good
and sufficient deeds of conveyance thereby, and all
assignments, transfers and other legal instruments,
either necessary or convenience for passing the
title and ownership thereto, free and discharged of
all trusts and without liability on the part of
such purchasers to see to the application of the
purchased money;
(c) to hold cash uninvested to the extent necessary to
pay benefits or expenses of the plan, without
liability for interest thereon;
(d) to cause any investment of the Fund to be
registered in the name of the Trustee or the name
of its nominee or nominees or to retain such
investment unregistered or in a form permitting
transfer by delivery, provided that the books and
records of the Trustee will at all times show that
all such investments are part of the Fund;
(e) upon the written direction of the Plan
Administrator, to vote in person or in proxy with
respect to all securities that are part of the
Trust Fund, and generally to exercise any of the
powers of an owner with respect to stocks, bonds,
securities, or other property;
(f) upon written direction of the Plan Administrator,
to apply for, purchase, hold or transfer any life
insurance, retirement income, endowment or annuity
contract;
(g) to consult and employ any suitable agent to act on
behalf of the Trustee and to contract for legal,
accounting, clerical and other services deemed
necessary by the Trustee to manage and administer
the Fund according to the terms of this Plan;
(h) upon the written direction of the Plan
Administrator, to make loans from the Fund to
Participants in amounts and on terms approved by
the Plan Administrator in accordance with the
provisions of the Plan, provided that the Plan
Administrator will have the sole responsibility for
computing and collecting all loan repayments
required to be made under the Plan;
(i) to pay from the Trust Fund all taxes imposed or
levied with respect to the Trust Fund or any part
thereof under existing or future laws, and to
contest the validity or amount of any tax,
assessment, claim or demand respectively the Fund
or any part thereof;
(j) to borrow or raise money for the purposes of the
Plan in such amount, and open such terms and
conditions, as the Trustee will deem advisable, and
for any sum so borrowed, to issue a promissory note
as Trustee, and to secure the repayment thereof by
pledging all, or any part of the Trust Fund; and no
person lending money to the Trustee will be bound
to see to the application of the money being lent
or to inquire into the validity, expediency, or
propriety of any borrowing;
(k) to settle, compromise, or submit to arbitration any
claims, debts, or damages due or owing to or from
the Plan, to commence or defend the Plan in suits
or legal or administrative proceedings, and to
represent the plan in all suits and legal and
administrative proceedings;
(l) to make, execute, acknowledge, and deliver any and
all documents of transfer and conveyance and any
and all other instruments that may be necessary or
appropriate to carry out the powers herein granted;
and
(m) to do all such acts and exercise all such rights
and privileges, although not specifically mentioned
herein, as the Trustee may deem necessary to carry
out the purposes of the Plan.
(n) if there is more than one Trustee, they will act by
a majority of their number, but may authorize one
or more of them to sign papers on their behalf.
12.4 Insurance Provisions
(a) At the election of each participant, the Trustee,
acting on the written direction of the Plan
Administrator, will apply for, own, and pay
premiums on contracts on the lives of the
participants. If a life insurance policy is to be
purchased for a Participant, the aggregate premium
for ordinary life insurance for each Participant
must be less than fifty (50%) percent of the
aggregate of the contributions to the credit of the
Participant any particular time. If term insurance
is purchased with such contributions, the aggregate
premium must be less than twenty five (25%) percent
of the aggregate contributions allocated to a
Participant's Account. If both term insurance and
ordinary life insurance are purchased with such
contributions, the amount expended for term
insurance plus one-half (1/2) of the premium for
ordinary life insurance may not in the aggregate
exceed twenty five (25%) percent of the aggregate
contributions allocated to a Participant's account.
(b) The Trustee must convert the entire value of the
life insurance contract at or before retirement
into cash or to provide for a periodic income with
such cash as that no portion of such value may be
used to continue life insurance protection beyond
retirement. Alternately, the Trustee may
distribute the contracts to the Participants.
(c) Amounts contributed or credited to a Participant's
Voluntary Contribution Account will not be applied
to the purchase of life insurance contracts.
On and after July 1, 1991, this provision 12.4 will
no longer be operative.
12.5 Accounting and Reporting Duties of the Trustee
(a) The Trustee will keep full and accurate accounts of
all receipts, investments, disbursements and other
transactions hereunder, including such specific
records as may be agreed upon in writing between
the Plan Administrator and the Trustee. All such
accounts, books, and records will be open to
inspection and audit at all reasonable times by any
authorized representative of the Employer or the
Plan Administrator. Participant may examine only
those individual account records pertaining
directly to him.
(b) Within 90 days after the end of each Plan Year or
within 90 days after its removal or resignation,
the Trustee will file with the Plan Administrator a
written account of the administration of the Trust
Fund showing all transactions effected by the
Trustee subsequent to the period covered by the
last preceding accruing period to the end of such
Plan Year or date of removal or resignation and all
property held at its fair market value at the end
of the accounting period. Upon approval of such
accounting by the Plan Administrator, neither the
Employer nor the Plan Administrator will be
entitled to any further accounting by the Trustee.
The Plan Administrator may approve such accounting
by written notice of approval delivered to the
Trustee or by failure to express objection to such
accounting in writing delivered to the Trustee
within 90 days from the date on which the
accounting is delivered to the Plan Administrator.
12.6 Prohibition of Diversion
(a) Except as provided in (b) below, at no time shall
any part of the corpus or income of the Trust Fund
be used for, or diverted to, purposes other than
for the exclusive benefit of Participants or their
Beneficiaries, or for defraying reasonable expenses
of administering the Plan.
(b) Notwithstanding the above, contributions made by
the Employer under the Plan will be returned to the
Employer under the following conditions:
(1) if a contribution is made by mistake of fact,
such contribution will be returned to the
Employer within one year of the payment of
such contribution;
(2) contributions to the Plan are specifically
conditioned upon their deductibility under
the Code. To the extent a deduction is
disallowed for any such contribution, it will
be returned to the Employer within one year
after the disallowance of the deduction.
Contributions which are not deductible in the
taxable year in which made but are deductible
in subsequent taxable years will not be
considered to be disallowed for purposes of
this subsection, and;
(3) contributions to the Plan are specifically
conditioned on initial and continued
qualification of the Plan under the Code. If
the Plan is determined to be disqualified,
contributions made in respect of any period
subsequent to the effective date of such
disqualification will be returned to the
Employer within one year after the date of
denial of qualification.
12.7 Trustee's Compensation
If approved by the Plan Administrator, the Trustee will be
entitled to reimbursement for all direct expenses properly
and actually incurred on behalf of the Plan, which expenses
will be paid out of the Trust Fund unless paid directly by
the Employer.
12.8 Resignation and Removal of Trustee
(a) The Trustee may resign at any time by written
notice to the Employer which will be effective 30
days after the delivery of written notification to
the Employer, unless otherwise agreed upon in
writing.
(b) The Trustee may be removed by the Employer at any
time upon 30 days written notices to the Trustee.
(c) The appointment of a successor Trustee hereunder
shall be accomplished by and will take effect upon
the delivery to the resigning or removed Trustee,
as the case may be, of written notice of the
Employer appointing such successor Trustee, and an
acceptance in writing of the office of successor
Trustee hereunder executed by the successor so
appointed.
Any successor Trustee may be either a corporation
authorized and empowered to exercise trust powers
or one or more individuals. All of the provisions
set forth herein with respect to the Trustee will
related to each successor Trustee so appointed with
the same force and effect as if such successor
Trustee had been originally named herein as the
Trustee.
(d) Upon the appointment of a successor Trustee the
resigning removed Trustee will transfer and deliver
the Trust Fund to such successor Trustee, after
reserving such reasonable amount as it will deem
necessary to provide for its expenses chargeable
against the Fund for which it may be liable. If
the sums so reserved are not sufficient for such
purposes, the resigning or removed Trustee will be
entitled to reimbursement for any deficiency from
the successor Trustee and the employer who shall be
jointly and severally liable thereof.
EXHIBIT 4.2
AMENDMENT #1
TO THE
SUPER RITE FOODS EMPLOYEE INVESTMENT OPPORTUNITY PLAN
As authorized by Section 10.1 of the Super Rite Foods Employee
Investment Opportunity Plan ("Plan") as amended and restated
effective April 1, 1989, the employer, Super Rite Foods, Inc.,
hereby amends the Plan in the following manner:
FIRST: Sections 2.9 is amended to reflect the change made to
Internal Revenue Code ("Code") section 401(a)(17) by the Omnibus
Budget Reconciliation Act of 1993. This amendment is made
effective as of the plan year beginning on or after January 1,
1994. As amended, the last two paragraphs of Section 2.9 are
deleted and replaced by the following:
For any Plan Year beginning after December 31, 1993, the
plan administrator shall take into account only the first
$150,000 (or beginning January 1, 1995, such larger amount
as the Commissioner of Internal Revenue may prescribe) of
any Participant's Compensation for determining all benefits
provided under the Plan. For any Plan Year beginning after
December 31, 1988 but before January 1, 1994, the plan
administrator shall take into account only the first
$200,000 (or for plan years after December 31, 1989 but
before January 1, 1994, such larger amount as the
Commissioner of Internal Revenue may prescribe) of any
Participant's Compensation for determining all benefits
provided under the Plan. The compensation dollar
limitation for a Plan Year shall be the limitation amount
in effect on January 1 of the calendar year in which the
plan year begins. For any plan year beginning before
January 1, 1989, the compensation dollar limitation (but
not the family aggregation requirement described in the
next paragraph) applies only if the Plan is top-heavy for
such Plan Year or operates as a deemed top-heavy plan for
such Plan Year. If the Plan should determine Compensation
on a period of time that contains fewer than 12 calendar
months (such as for a short plan year), the annual
compensation dollar limitation shall be an amount equal to
the Compensation dollar limitation for the Plan Year
multiplied by the ratio obtained by dividing the number of
full months in the period by 12.
The compensation dollar limitation applies to the combined
compensation of the employee and of any family member
aggregated with the employee under Code Section 414(q)(6)
who is either (A) the employee's spouse, or (B) the
employee's lineal descendant under the age of 19. If, for a
Plan Year, the combined compensation of the employee and
such family members who are Participants entitled to an
allocation for that Plan Year exceeds the compensation
dollar limitation, Compensation for each such Participant,
for purposes of the contribution and allocation provisions
of Article V, means his adjusted compensation.
Adjusted compensation is the amount which bears the same
ratio to the compensation dollar limitation as the effected
Participant's Compensation (without regard to the
compensation dollar limitation) bears to the combined
compensation of all the effected Participants in the family
unit. If the Plan uses permitted disparity, the plan
administrator first shall determine the integration level
of each effected family member Participant using actual
Compensation. The total of the effected Participants'
Compensations equal to or less than the applicable
integration levels may not exceed the compensation dollar
limitation. The combined excess compensation of the
effected Participants in the family unit may not exceed the
compensation dollar limitation minus the amount determined
under the preceding sentence. If the combined excess
compensation exceeds this limitation, the plan
administrator will prorate the limitation on the excess
compensation among the effected participants in the family
unit in proportion to each such individual's actual
Compensation minus his integration level.
SECOND: Section 2.30 is amended to correctly state the effective
date of the amendment and restatement as the effective date for
the Tax Reform Act of 1986 with respect to the Plan. As amended,
Section 2.30 shall read as follows:
2.30 "Plan Restatement Date" means April 1, 1989. The Plan is
intended to be a profit sharing plan within the meaning of
Regulation 1.401(k)-1(a)(1).
THIRD: Section 2.31 is amended to state the effective date as of
which the plan year was amended from the twelve-month period
commencing on April 1 to the twelve-month period commencing on
January 1. As amended, Section 2.31 shall read as follows:
2.31 "Plan Year" means the period from January 1, through
December 31, and each twelve-month period commencing on
January 1, effective January 1, 1991. Prior to January 1,
1991, Plan Year shall mean the twelve-month period
commencing on April 1. A short plan year shall exist from
April 1, 1990 through December 31, 1990.
FOURTH: Sections 2.34 and 2.35 are amended to remove the second
paragraph of Section 2.35 and to insert said paragraph as the
third paragraph of Section 2.34.
FIFTH: Section 4.1 is amended to delete the provisions for
participation as of the Restatement Date and to correctly state
the eligibility and entry date provisions. As amended, the
second paragraph of Section 4.1 shall read as follows:
Each person who is an Eligible Employee may become a Participant
on the Entry Date which is the first day of the month next
following his completion of one (1) Year of Service.
SIXTH: Section 7.6(e) which permits the in-service distribution
of PAYSOP contributions is deleted in its entirety as this was
not permitted prior to the amendment and restatement and had not
been permitted since that date.
SEVENTH: Section 5.1 is amended to limit the date as of which a
salary-reduction agreement may be effective. As amended, Section
5.1 shall have inserted between the first and second paragraph
thereof two paragraphs that shall read as follows:
The Salary-Reduction Agreement shall be effective as of a
prospective date as provided in the Agreement. However, in
no event shall such Agreement be effective before the
adoption of this Salary-Reduction contributions provision
under the Plan. A participant electing Salary Reduction
Contributions will be deemed to desire to continue at the
same rate, unless he notifies the Administrator before the
applicable date of his desire to change the amount of
Salary-Reduction Contributions in accordance with the
Administrator's written procedures. The revised election
shall be effective on the applicable date. A Salary-
Reduction Contribution may be discontinued at any time upon
notice in accordance with the administrative procedures. A
participant who has declined or suspended Salary-Reduction
Contributions may elect salary reduction as of the January
1 or July 1 following the Administrator's acceptance of the
Salary-Reduction Agreement.
However, if a participant receives a hardship distribution,
his right to elect a Salary-Reduction Contribution shall be
suspended for 12 months after the receipt of such
distribution. Further, the participant may not elect a
Salary-Reduction Contribution for his taxable year
immediately following the taxable year of the hardship
distribution in excess of the applicable limit under Code
Section 402(g) for such taxable year less the amount of
such participant's Salary-Reduction Contributions for the
taxable year of the hardship distribution.
(3) Conditions - The participant's salary
reduction election shall apply only to compensation which
becomes currently available to the employee after the
effective date of the election. The employer shall apply
the salary reduction election to all of the participant's
compensation (and to increases in compensation), unless the
participant's salary reduction election specifies that the
election is to be limited to certain compensation.
EIGHTH: Section 5.1(c) is amended to include the allocation
formula that failed to appear in the amendment and restatement of
the Plan. As amended, Section 5.1(c) shall read as follows:
(c) Discretionary Contributions
Effective on or after January 1, 1987, the Employer
may make a contribution (subject to the limitations
of this Article V) from Net Profits or from
accumulated Net Profits to the Plan at the end of
each Plan Year in an amount, which in the opinion
of the Employer, is appropriate for such Plan Year.
Such contributions will be referred to as the
Employer's Discretionary Contributions." The
Employer's Discretionary Contribution for the Plan
Year will be allocated in the same ratio as each
Participant's Compensation bears to the total of
such Compensation of all Participants.
NINTH: Section 5.1(e) is amended to reference the plan document
preceding the amendment and restatement effective April 1, 1989
rather than a previous plan and to correctly state the effective
date as of which the PAYSOP was discontinued. As amended,
Section 5.1(e) shall read as follows:
(e) PAYSOP Contributions
Effective on April 1, 1985, a Payroll Credit
Employee Stock Ownership Plan ("PAYSOP") was
established in Article XII of the plan document as
in existence before this amendment and restatement
to promote Employees' interest in the business
endeavors of the Employer.
Effective for the Plan Year beginning April 1, 1987
and thereafter, Article XII of the plan document as
in existence before this amendment and restatement
is no longer operative. Contributions made on
behalf of Participants pursuant to said Article XII
will be referred to as the employer's PAYSOP
Contributions."
TENTH: Section 6.3 is amended to provide for quarterly
investment changes with respect participant contributions. As
amended, the final paragraph of Section 6.3 shall read as
follows:
Subject to the restrictions pertaining to Employer
Contributions set forth above, a Participant may change the
proportion of any Contribution on any January 1, April 1,
July 1, or October 1 made in accordance with Article V that
is to be credited to each Investment Subaccount by
notifying the Administrator when such change is to become
effective. No such changes may be retroactive. Such
changed proportion will apply to such Contributions
received by the Funding Agent on or after the later of the
effective date of such change and the date of receipt of
such notification by the Funding Agent, and will remain in
effect until any subsequent change is made by the
Participant.
ELEVENTH: Effective January 1, 1993, the Plan is amended by
relettering Section 7.3(d) as 7.3(e) and by inserting a new
Section 7.3(d) to comply with Internal Revenue Code section
401(a)(31) as added by the Unemployment Compensation Amendments
of 1992. As amended, Section 7.3(d) and (e) shall read as
follows:
(d) a rollover distribution. Effective for
distributions made on or after January 1, 1993,
notwithstanding the optional forms of payment
listed above, a distributee may elect, at the time
and in the manner prescribed by the Administrator,
to have any portion of an eligible rollover
distribution paid directly to an eligible
retirement plan specified by the distributee in a
direct rollover.
(1) Eligible Rollover Distribution - An eligible
rollover distribution is any distribution of
all or any portion of the balance to the
credit of the distributee, except that an
eligible rollover distribution does not
include: any distribution that is one of a
series of substantially equal periodic
payments (not less frequently than annually)
made for the life (or life expectancy) of the
distributee or the joint lives (or joint life
expectancies) of the distributee and the
distributee's designated beneficiary, or for
a specified period of ten years or more; any
distribution to the extent such distribution
is required under ten years or more; any
distribution to the extent such distribution
is required under Code Section 401(a)(9) and
the portion of any distribution that is not
includible in gross income (determined
without regard to the exclusion for net
unrealized appreciation with respect to
employer securities).
(2) Eligible Retirement Plan - An eligible
retirement plan is an individual retirement
account described in Code Section 408(a), an
individual retirement annuity described in
Code Section 408(b), an annuity plan
described in Code Section 403(a), or a
qualified trust described in Code Section
401(a), that accepts the distributee's
eligible rollover distribution. However, in
the case of an eligible rollover distribution
to the surviving spouse, an eligible
retirement plan is an individual retirement
account or individual retirement annuity.
(3) Distributee - A distributee includes an
employee or former employee. In
addition, the employee's or former
employee's surviving spouse and the
employee's or former employee's spouse
or former spouse who is the alternate
payee under a qualified domestic
relations order, as defined in Code
Section 414(p), are distributees with
regard to the interest of the spouse or
former spouse.
(4) Direct Rollover - A direct rollover is
a payment by the plan to the eligible
retirement plan specified by the
distributee.
(e) a combination of any or all of a, b, c, or d.
TWELFTH: Section 7.6(b) is amended to suspend the right to elect
salary-reduction contributions if a hardship distribution is
received. As amended, the second to the last paragraph of
Section 7.6(b) shall read as follows:
In the event of such hardship withdrawal, the Participant
may continue his participation in the Plan without
interruption. However, if a Participant receives a
hardship distribution, his right to elect a Salary-
Reduction Contribution under this Plan and any other plan
sponsored by the Employer shall be suspended for 12 months
after the receipt of such distribution. Further, the
Participant may not elect a Salary-Reduction Contribution
for his taxable year immediately following the taxable year
of the hardship distribution in excess of the applicable
limit under Code section 402(g) for such taxable year less
the amount of such Participant's Salary-Reduction
Contribution for the taxable year of the hardship
distribution.
THIRTEENTH: Section 7.8 is amended by deleting the current
language and inserting a new provision that more fully describes
the participant loan program. As amended, Section 7.8 shall read
as follows:
7.8 Loans
(a) Terms and Conditions
The Plan will provide loans to Participants in
accordance with the conditions and restrictions set
forth below.
(1) Application and Approval - A Participant may
file a written application with the
Administrator for a loan of a stated amount
and term and for a stated purpose.
The application shall be consented to by the
participant's spouse, and the spousal consent
shall be witnessed by a plan representative
or notary public. Such spousal consent will
not be required if the loan amount is not in
excess of $3,500 or if, with respect to the
participant, this plan is not a direct or
indirect transferee of a defined benefit
plan, money purchase pension plan (including
a target benefit plan), or a stock bonus or
profit sharing plan which would otherwise
have provided for a qualified joint and
survivor life annuity as the normal form of
distribution payment to the participant. If
spousal consent is required hereunder, it
shall be obtained in compliance with and have
the effect described under Section 7.4
Qualified Election.
All loans shall be subject to the approval of
the Administrator. Loans shall be available
to all Participants on a reasonably
equivalent and non-discriminatory basis. In
considering a loan, the Administrator may
take into account the availability of cash in
the fund. No loans shall be made to any
owner-employee or to any shareholder-employee
(within the meaning of Code Section 1379(b)).
On or after July 1, 1991, only two (2)
outstanding loans at a time shall be
permitted for each Participant taking a loan.
An assignment or pledge of any portion of the
Participant's interest in the Plan and a
loan, pledge, or assignment with respect to
any insurance contract purchased under the
Plan, shall be treated as a Participant loan
under this paragraph.
(2) Amount - No loan shall exceed the
Participant's current vested accrued benefit.
Further no loan to any Participant may be
made to the extent that such loan, when added
to the outstanding balance of all other loans
to the Participant, would exceed the lesser
of:
(A) $50,000, reduced by the excess (if any)
of -
(i) the highest outstanding balance of
loans from the Plan during the one-
year period ending on the day
before the date on which such loan
is made, over
(ii) the outstanding balance of loans
from the Plan on the date on which
such loan is made; or
(B) One-half the present value of the nonforfeitable
accrued benefit of the Participant which is
credited to his accounts.
For the purpose of the above limitation, all loans from all
plans of the Employer and other members of a group of
employers described in Code Sections 414(b), 414(c), and
414(m) shall be aggregated. The amount of the loan may not
be less than the minimum loan amount which may be
established by the Administrator for the Plan on a uniform
and non-discriminatory basis. Such minimum loan amount
shall not exceed $1,000. Loans shall not be made available
to highly compensated employees, (as defined in Code
Section 414(q)) in an amount greater than the amount made
available to other employees, except to the extent that the
then vested account balances may be greater.
(3) Term - The period of repayment for any loan shall be
arrived at by mutual agreement between the Administrator
and the Participant; provided that any such loan will by
its terms require repayment within five years unless such
loan is used to acquire or construct a dwelling unit which
within a reasonable time (determined at the time the loan
is made) will be used as the principal residence of the
participant or a member of the family of the participant.
Repayment shall, in any event, be made before the
participant's normal retirement age, and the loan shall not
be renewable. The loan shall require substantially level
payments of principal and interest not less frequently than
quarterly.
(4) Interest Rate - Each loan shall bear reasonable interest at
a fixed rate to be determined by the Administrator. The
Administrator shall not discriminate among Participants in
the matter of interest rates; but loans granted at
different times may bear different interest rates if, in
the opinion of the Administrator, the differences in rates
are justified by general economic conditions. The
Administrator shall determine the interest rate by using
the prime rate plus 1%. The rate shall be set not less
frequently than at the beginning of each calendar quarter
for all loans approved during that period.
(5) Security - Each loan shall be evidenced by the borrowing
Participant's promissory note, in the amount of loan, plus
interest, payable to the order of the Plan. Also, each
loan shall be adequately secured by the Participant's
assignment to the Plan of all of the right, title or
interest in and to the fund upon to the amount of the
outstanding loan balance.
Default on the note shall be treated as a distributable
event under this Plan subject to the restrictions below.
In the event of default, foreclosure on the note and
attachment of security shall not occur until after the
earlier of a distribution made under this Article VII or
the elapse of 3 month(s) without the default being cured
and in any case not later than the date which is the fifth
anniversary of the making of the loan. However, to the
extent the loan is attributable to the Participant's
Salary-Reduction Contributions Account, the Participant's
Voluntary Contributions Account, the Employer's Qualified
Matching Contributions Account (if any) or the Employer's
Qualified Non-Elective Contributions Account (if any),
attachment of security shall not occur until the
Participant separates from service or attains age 59 1/2.
If any amount of principal or interest is outstanding to
any Participant at a time when distribution of benefits is
to be made, then such loan, including accrued interest
thereon, shall be treated as a partial distribution of the
total benefit payable to such Participant or former
participant, and the note canceled. In such an event, the
Participant's vested accrued benefit under the applicable
accounts shall be reduced pro rata.
(b) Participant Loan Sub-Accounts
In the case of a Participant who has been granted a
loan hereunder, the Administrator shall establish a
Participant Loan Sub-Account for the Participant in
an amount equal to the initial principal amount of
the loan. Interest and principal payments made by
a Participant during a Plan Year shall be deposited
in the Participant Loan Sub-Account. As of the
last day of each Plan Year, all accumulated amounts
shall be transferred out of said sub-account and
invested under the Plan's specified investment
provisions. Any additional fees or charges or
taxes incurred with respect to the administration
of Participant Loan Sub-Account may be charged to
such Participant's account, or such fee may be paid
by the Employer.
FOURTEENTH: Section 9.1(c) is amended to provide for a current
distribution to an alternate payee under qualified domestic
relations order. As amended, the following paragraph shall be
inserted at the conclusion of Section 9.1(c):
This Plan specifically permits distribution to an
alternate payee under a qualified domestic
relations order at any time, irrespective of
whether the Participant has attained his earliest
retirement age (as defined under Code section
414(p)) under the Plan. A distribution to an
alternate payee prior to the Participant's
attainment of earliest retirement age is available
only if: (1) the order specifies distribution at
that time or permits an agreement between the Plan
and the alternate payee to authorize an earlier
distribution; and (2) if the present value of the
alternate payee's benefits under the Plan exceeds
$3,500, and the order requires, the alternate payee
consents to any distribution occurring prior to the
Participant's attainment of earliest retirement
age.
FIFTEENTH: Section 9.11 is amended to permit the return of an
employer contribution to the employer if such contribution cannot
be deducted under Code section 404. As amended, Section 9.11
shall be retitled "Mistaken Contributions" and shall contain a
subsection (c) to read as follows:
(c) In the event the deduction of a contribution made
by the Employer is disallowed under Code Section
404, such contribution (to the extent disallowed)
must be returned to the Employer within one year of
the disallowance of the deduction.
SIXTEENTH: Section 9.12 is amended by altering the final
sentence of that provision so that such section shall not imply
that employer reimbursements of the trust fund will not be
considered employer contributions for purposes of Code section
404. Further such section is amended to provide for the
allocation of the reimbursement. As amended, the final sentence
of Section 9.12 shall read as follows:
Any administration expense paid to the Trust Fund as
reimbursement will not be considered an Employer
Contribution for purposes of allocation, but shall be
allocated among the Accounts based on allocation of the
expenses being reimbursed.
SEVENTEENTH: Section 10.1 is amended to provide the agent
authorized by the Employer to terminate or amend the Plan. As
amended, the following sentence shall be inserted as the second
sentence of the first paragraph of Section 10.1.
The termination or amendment of this Plan shall be in
writing, authorized by the Board of Directors of the
Employer, and executed by the officer designated in such
authorization.
EIGHTEENTH: Section 11.3(b) is amended to delete the reference
to the first $200,000 of the Key Employee's Earnings and to
insert language that coordinates this compensation limit with the
amendments to Internal Revenue Code section 401(a)(17). Further,
a sentence is inserted to address the treatment of Salary-
Reduction Contributions made by Key Employees for this purpose.
As amended, the first paragraph of Section 11.3(b) shall read as
follows:
(b) Section 5.1: Except as otherwise provided below,
Employer Contributions made on behalf of any
Participant* who is a Non-Key Employee will not be
less than the lesser of 3% of such Participant's
Top-Heavy Compensation, or in the case where the
Employer has no defined benefit plan which
designates this Plan to satisfy Code section 401,
the largest percentage of Employer Contributions,
as a percentage of the Key Employee's Earnings
which may be taken into account under Section 2.9,
made on behalf of any Key Employee for that year.
For this purpose, amounts contributed to the Key
Employee's Participant Salary-Reduction
Contributions Account shall be included as
contributions made on his behalf for that year.
The minimum Employer Contribution is determined
without regard to any Social Security contribution.
NINETEENTH: Section 11.4 is amended to provide that in the event
that the Plan's Top-Heavy Required Aggregation Group is top-
heavy, a Plan participant who is also cover by Super Rite Foods,
Inc. Pension Plan will receive his required minimum benefit under
the pension plan. As amended, Section 11.4 shall read as
follows:
11.4 Coordination with Defined Benefit Plan:
In any Plan Year in which this Plan is top-heavy when
aggregated with the Super Rite Foods, Inc. Pension
Plan which the Employer also sponsors, the top-heavy
minimum benefit requirement shall be met under such
other sponsored plan. If a Participant only
participates in this Plan, the top-heavy minimum
benefit shall first be met by any allocation to the
Employer Qualified Non-Elective Contribution Account
for the Plan Year. Then, the contributions and
forfeitures allocable to the Employer Discretionary
Contribution Account shall e increased if necessary
for compliance. The total of the contributions and
forfeitures allocated to such accounts for such a
Participant shall not be less than an amount equal to
3% of his Compensation.
TWENTIETH: Section 12.2 is amended to address this investment of
the Employer Discretionary Contributions Account and the Employer
Matching Contributions Account and to authorize the Trustee to
invest more than ten percent of the trust fund in employer stock.
As amended, Section 12.2 shall contain a new subsection (c) that
shall read as follows:
(c) Effective on and after July 1,1991, contributions
allocated to a Participant's Employer Discretionary
Contributions Account shall be invested in employer
stock. Effective on and after May 15, 1992,
contributions allocated to a Participant's Employer
Matching Contributions Account shall also be
invested in employer stock. It is specifically
intended that this Plan qualify and operate as an
eligible individual account plan as defined in
ERISA Section 407(d)(3). As such, and without
limiting the generality of the foregoing, the
Trustee is specifically authorized to:
(1) acquire, hold, sell, and distribute employer
stock.
(2) invest in employer stock and not limit its
holdings of such stock to ten percent of
trust assets but may invest up to fifty
percent of Trust Fund in employer stock
without regard to any Plan requirement to
diversify investments as permitted under
ERISA Section 404(a)(2).
(3) acquire or sell employer stock in a
transaction with a disqualified person or a
party in interest (as those terms are defined
in ERISA and the Code) provided that no
commission is charged and the transaction is
for adequate consideration.
In the event that the investment of an allocation to such
accounts would cause more than fifty percent of the Trust
Fund to be invested in employer stock, the Trustee shall
not acquire additional employer stock and shall invest the
allocation under the general provisions of Section 12.3.
TWENTY-FIRST: In order to direct the trustees to comply with
ERISA section 404(c), a new Section 12.9 is inserted. Section
12.9 shall read as follows:
12.9 Compliance with ERISA Section 404(c)
(a) This Plan is intended to provide an opportunity for
a Participant or beneficiary (including an
alternate payee) to exercise control over the
assets in his individual account and to choose from
a broad range of diversified investment
alternatives the manner in which all or some of the
assets in his account are invested.
(b) A Participant (or beneficiary) may elect to have
his accounts invested in such combination of three
or more investment funds as may be established by
the Trustee and made available for the benefit of
Participants. A Participant's investment election
shall not apply to any portion of any account that
may be invested in a Participant loan sub-account.
The investment results shall be allocated to the
Participant's accounts based upon earnings and
losses on the Participant's share in such
investment fund or funds.
(c) A Participant investment election shall be made in
accordance with the written procedures of the Plan
Administrator as provided by the Administrator.
Such procedures shall be reasonable and shall be
provided to all persons with the right to make
investment elections under the Plan. The
procedures shall permit investment instructions to
be given and to be effective on a frequency that is
appropriate to the reasonably expected market
volatility of the investment from which or to which
a transfer is being made. With respect to at least
three investment alternatives which are intended to
qualify as core investments meeting the broad range
requirements of Regulation section 2,550.404c-
1(b)(3), the Administrator shall permit at least
quarterly instructions. Further, the Administrator
shall adopt procedures that comply with either
paragraph (1) or paragraph (2).
(1) Transfers into a least one of the core
investment alternatives shall be permitted on
a frequency basis that matches the frequency
of investment instructions permitted with
respect to any non-core investment
alternative allowing instructions more often
than quarterly.
(2) Transfers into an income producing, low risk,
liquid fund, subfund or account for the
temporary holding of proceeds from
investments shall be permitted until the next
opportunity to transfer investments into one
of the core investment alternatives.
In addition, if the Plan provides an Employer
security alternative, the procedures shall permit
transfers from the Employer security alternative
either to all core investments at least as
frequently as instructions may be given for the
Employer security alternative or to a temporary
holding account as described in (2).
An election may be revoked only by another election
and will remain in effect until such revocation.
If no initial election is timely received by the
Plan Administrator, the Plan Administrator shall
invest the account in a fund designated for such
purpose.
(d) The Employer shall continue to bear responsibility
for the prudent selection of investment vehicles
offered to Participants and for the proper
monitoring of the performance of those vehicles.
The Employer shall provide for at least three core
investment alternatives that together meet the
regulatory requirements for a broad range of
investment alternatives. Such investments shall
offer the Participant or beneficiary a reasonable
opportunity to (1) materially affect both the
potential return on the assets subject to his
control and the degree of risk to which those
assets are subject; (2) diversify his investment so
as to minimize the risk of large losses,
considering the nature of the Plan and the size of
Participants' accounts; and (3) choose from at
least three diversified categories of investments.
Each such investment shall be diversified and shall
have materially different risk and return
characteristics from the other core alternatives.
Together such investments shall permit the
Participant to design a portfolio with appropriate
risk and return characteristics for the
Participant's financial and personal circumstances.
Further, such investments when taken together shall
tend to minimize through diversification the
overall risk at any given level of respected
return.
In the case of a sale, exchange, or leasing of
property between the Plan and a Plan fiduciary or
an affiliate of such a fiduciary, or a loan to a
Plan fiduciary or an affiliate of such a fiduciary,
the Participant directing the investment transfer
shall pay no more than, or receive no less than,
adequate consideration as defined in ERISA Section
3(18).
(e) The Plan Administrator or a person designated by
the Administrator shall provide investment
information to the extent and as required by
Regulation section 2550.404c-1(b)(2). However, the
Administrator will not provide any investment
advice to any Participant or beneficiary.
(f) The Plan Administrator or its designee and the
Trustee are required to comply with the investment
instructions of a Participant or beneficiary;
however, they shall decline to implement an
investment instruction if the requested investment
would result in one of the following:
(1) A prohibited transaction described in ERISA
Section 406 or Code Section 4975.
(2) Taxable income to the trust.
(3) A violation of the terms of the Plan.
(4) The maintenance of the indica of ownership of
Plan assets outside the jurisdiction of the
United States district courts in a manner not
authorized by regulations.
(5) Jeopardizing the Plan's tax-qualified status.
(6) A loss in excess of the requesting
individual's account balance.
(7) A direct or indirect transaction between the
Plan and the Plan sponsor that does not
constitute a permitted acquisition or
disposition of an interest in a fund, subfund
or portfolio managed by a Plan sponsor or an
affiliate of the sponsor or of Employer
securities.
(8) A direct or indirect loan to a Plan sponsor
or any affiliate of the sponsor.
(9) A direct or indirect acquisition or sale of
any Employer real property as defined in
ERISA Section 407(d)(2).
(10) The acquisition of a collectible as defined
in Code Section 408(m).
(11) The acquisition or sale of any Employer
security except to the extent that such
security is:
(1) A qualifying Employer security as
defined in ERISA Section 407(d)(5);
(2) Publicly traded on a national exchange
or other generally recognized market;
(3) Traded with sufficient frequency and in
sufficient volume to assure that
Participant directions to buy or sell
the security may be acted upon promptly
and efficiently; and
(4) Subject to the requirements of Section
12.9(g).
In addition, the Plan Administrator shall not
accept an investment instruction if the
Participant or beneficiary giving the
instruction is known to the Administrator to
be legally incompetent.
(g) The Plan Administrator shall adopt reasonable
procedures with regard to the Employer security
alternative that shall provide for confidentiality
with respect to purchase, holding, sale, tender and
similar rights. The Administrator shall appoint a
fiduciary (which may be itself) to be responsible
for monitoring compliance with the procedures.
Further, the Administrator shall appoint an
independent fiduciary to monitor compliance with
the procedures in the event that a situation arises
where the potential for undue Employer influence
upon Participants and beneficiaries may exist in
the exercise of shareholder rights. Participants
shall be provided upon request with material, non-
public facts regarding the investment, unless the
disclosure would violate any provision of federal
or state law not preempted by ERISA.
TWENTY-SECOND: If not otherwise provided, these amendments are
made effective as of April 1, 1989.
TWENTY-THIRD: All other provisions of the Plan remain in full
force and effect.
Executed this 28th day of December, 1994.
SUPER RITE FOODS, INC.
By: /s/ William Schantzenbach
Title: Vice President - Finance
By: /s/ William Schantzenbach By: _________________________
Trustee Trustee
By: /s/ John J. Harrison By: _________________________
Trustee Trustee
Exhibit 23.1
Consent of Independent Auditors
The Board of Directors
Richfood Holdings, Inc.:
We consent to incorporation by reference in the registration
statement on Form S-8 of Richfood Holdings, Inc. of our reports
dated June 5, 1995, relating to the consolidated balance sheets
of Richfood Holdings, Inc. and subsidiaries as of April 29, 1995
and April 30, 1994, the related consolidated statements of
earnings, stockholders' equity and cash flows, and the related
financial statement schedules, for each of the fiscal years in
the three-year period ended April 29, 1995, which reports are
included in or incorporated by reference into the Form 10-K
of Richfood Holdings, Inc. for the fiscal year ended April 29,
1995, incorporated by reference into the registration statement.
/s/ KPMG PEAT MARWICK LLP
Richmond, Virginia
February 26, 1996
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of Richfood Holdings, Inc. on Form S-8 of our report
dated April 21, 1995, except for the sixth paragraph of Note 7
which is dated as of May 5, 1995, on our audits of the
consolidated financial statements and financial statement
schedules of Super Rite Corporation as of March 4, 1995 and
February 26, 1994 and for the fifty-three week period ended March
4, 1995 and for each of the fifty-two week periods in the
two-year period ended February 26, 1994, which report is included
in the 1995 annual report on Form 10-K, as amended on Form
10-K/A, which is incorporated by reference in Richfood Holdings,
Inc. Registration Statement on Form S-4, filed with the
Commission (File No. 33-62413) on September 7, 1995, which
Registration Statement is incorporated by reference in the
Registration Statement on Form S-8.
/s/ COOPERS & LYBRAND L.L.P.
One South Market Square
Harrisburg, Pennsylvania
February 23, 1996
EXHIBIT 23.3
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Richfood Holdings, Inc.
Registration on Form S-8
We are aware that our report dated July 12, 1995 on
our review of interim financial information of Super Rite
Corporation for the thirteen-week period ended June 3, 1995 and
included in the Super Rite Corporation's quarterly report on Form
10-Q for the quarter then ended is incorporated by reference in
Richfood Holdings,Inc.'s registration statement on Form S-4 filed
with the Securities and Exchange Commission (File No. 33-62413)
on September 7, 1995, which registration statement on Form S-4 is
incorporated by reference in the registration statement on Form
S-8. Pursuant to Rule 436(c) under the Securities Act of 1933,
this report should not be considered a part of the registration
statement prepared or certified by us within the meaning of
Sections 7 and 11 of that Act.
/s/ COOPERS & LYBRAND L.L.P.
One South Market Square
Harrisburg, Pennsylvania
February 23, 1996
Exhibit 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of Richfood Holdings, Inc. on Form S-8 of our report
dated December 11, 1995, on our audit of the financial statements
of Super Rite Foods Employee Investment Opportunity Plan
as of December 31, 1994 and 1993 and for the year ended December
31, 1994, which report is included in the annual report on Form
11-K, incorporated by reference in the registration statement on
Form S-8.
/s/ COOPERS & LYBRAND L.L.P.
One South Market Square
Harrisburg, PA 17101-9916
February 23, 1996
